Citation Nr: 21013796 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-08 759 DATE: March 10, 2021 ORDER The appeal is dismissed. FINDING OF FACT In March 2021, the Department of Veterans Affairs (VA) was notified that the Veteran died in February 2021, which was confirmed by his death certificate. CONCLUSION OF LAW Due to the death of the Veteran, the Board of Veterans’ Appeals (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 served on active duty from January 1966 to October 1969. This matter comes before the Board on appeal from an October 2014 rating decision issued by a VA Regional Office. In November 2017, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In September 2018, the Board denied a rating in excess of 40 percent for diabetes mellitus, type II. The Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted his and the Secretary of VA’s (the parties’) Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s decision. In February 2020, the Board assumed jurisdiction over the issue of entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 4, 2016, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 345 (2018), and remanded the case for additional development. In December 2020, the Board recharacterized the issue of entitlement to a TDIU as entitlement to a TDIU due to a single service-connected disability from August 1, 2013, to October 2, 2017, in light of the award of a combined 100 percent schedular rating for the entire appeal period and special monthly compensation (SMC) at the housebound rate from May 9, 2013, to August 1, 2013, and as of October 2, 2017, in a September 2020 rating decision, and again remanded the case for additional development. 38 U.S.C. § 1114(s); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). 1. Entitlement to a rating in excess of 40 percent for diabetes mellitus, type II. 2. Entitlement to a TDIU due to a single service-connected disability from August 1, 2013, to October 2, 2017. Unfortunately, the Veteran died during the pendency of the appeal. Specifically, in March 2021, VA was notified that the Veteran died in February 2021, which was confirmed by his death certificate. 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. 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). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.