Citation Nr: 21013458
Decision Date: 03/09/21	Archive Date: 03/09/21

DOCKET NO. 19-00 668
DATE: March 9, 2021

ORDER

The appeal for entitlement to service connection for erectile dysfunction is dismissed.

The appeal for entitlement to service connection for right testicular pain, to include atrophy is dismissed.

FINDING OF FACT

In January 2021, prior to promulgation of a decision in the appeal, VA was notified that the appellant died earlier that month.

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal at this time. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran, who is the appellant in this case, served on active duty in the United States Army from June 1978 to December 1983.

Unfortunately, the appellant died during the pendency of the appeal.  As a matter of law, appellants’ claims do not survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994).  This appeal on the merits has become moot by virtue of the death of the Appellant and must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106. In this regard the record reflects that the Veteran’s surviving spouse filed a request for substitution in February 2021. To date, the agency of original jurisdiction (AOJ) has not adjudicated this request, or if approved, issues a supplemental statement of the case (SSOC) to her providing the reasons and bases for any continued denial of the claims that were pending at the time of the Veteran’s death.

The surviving spouse should be assured this decision is purely administrative in nature regarding the Veteran’s claims. Unfortunately, the Board is unable to address the merits of this case until a decision is issued regarding whether she is an eligible substitute.  Regrettably, the Board cannot make that determination in the first instance.  Hence, the Board offers no opinion on the merits of any claim presented by any proposed substitute.  These matters are, however, referred to the AOJ for prompt and appropriate consideration.

(Continued on the next page)

 

The Board’s dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion.  Such request must be filed not later than one year after the date of the appellant’s death. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b).  A person eligible for substitution includes “a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ….” 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a).  An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the VA office from which the claim originated. 38 C.F.R. § 3.1010(b).

 

 

H. SEESEL

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	E.L. Aumiller, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.