Citation Nr: 21014198
Decision Date: 03/11/21	Archive Date: 03/11/21

DOCKET NO. 17-19 653
DATE: March 11, 2021

ORDER

Entitlement to a compensable disability rating for bilateral hearing loss is dismissed.

Entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed.

Entitlement to an effective date earlier than March 27, 2014 for the grant of service connection for tinnitus is dismissed.

FINDING OF FACT

On March 8, 2021, the Board was notified that the appellant died in February 2021.

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 served on active duty in the United States Navy from March 1968 to February 1970.

This appeal arises from a November 2014 rating decision, denying a compensable rating for bilateral hearing loss.  The November 2014 rating decision also granted service connection for tinnitus, and assigned an initial rating of 10 percent, effective from March 27, 2014; and the Veteran appealed for a higher initial rating and an earlier effective date for the grant of service connection for tinnitus. 

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.

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).  

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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).

 

C. CRAWFORD

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Biswajit Chatterjee, 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.