Citation Nr: 21014715
Decision Date: 03/15/21	Archive Date: 03/15/21

DOCKET NO. 20-07 176
DATE: March 15, 2021

ORDER

Service connection for posttraumatic stress disorder is dismissed.

FINDING OF FACT

In March 2021, VA received notice that the Veteran died in January 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 from May 1971 to February 1973.  He served honorably in the U.S. Army.  The Board is thankful for the Veteran’s service to our country.

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.  See 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.  See 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; see 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).

In this case, a VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant, in March 2021. A review of the claims file reveals that the AOJ has yet to issue a decision related to the request for substitution. In this regard, the AOJ must provide written notification of its decision to either grant or deny a request for substitution to the person who filed the request, together with notice in accordance with 38 C.F.R. § 3.103 (b)(1) in the first instance, including any request to substitute in an appeal that is pending before the Board. 38 C.F.R. § 3.1010 (e). 

 

Accordingly, the Board cannot adjudicate the request for substitution in the first instance. Consequently, the Veteran’s appeal must be dismissed. 

 

 

M. C. GRAHAM

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Davitian, 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.