Citation Nr: 21016026
Decision Date: 03/19/21	Archive Date: 03/19/21

DOCKET NO. 14-11 695
DATE: March 19, 2021

ORDER

The appeal to reopen a claim of service connection for diabetes mellitus based on new and material evidence is dismissed.

The appeal for an evaluation in excess of 10 percent for bilateral hearing loss is dismissed.

The appeal for an effective date earlier than May 11, 2017, for an increase to 10 percent in evaluation for bilateral hearing loss is dismissed.

FINDING OF FACT

On June 29, 2020 the Board was notified that the appellant died in June 2020.

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) (2012); 38 C.F.R. § 20.1302 (2020).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1964 to December 1967.  He died in June 2020.

This appeal is before the Board of Veterans’ Appeals (Board) from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

In February 2020, the Board denied the issues addressed in this decision and remanded an additional claim of service connection for posttraumatic stress disorder (PTSD).  The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which vacated the denials in a December 2020 order granting a motion to voluntarily dismiss the appeal based on the death of the appellant.  The issues therefore return to the Board for dismissal.    

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) (2012); 38 C.F.R. § 20.1302 (2020).

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 (2020).  

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 (2012); 38 C.F.R. § 3.1010(b) (2020).  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 (2012); see 38 C.F.R. § 3.1010(a) (2020).  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 (listed on the first page of this decision).  38 C.F.R. § 3.1010(b) (2020).

The Board notes that although the Veteran’s widow submitted a July 2020 request for substitution, in the October 2020 motion to dismiss at the Court, the attorney representing both the Veteran and his widow stated that the widow did not desire to further pursue the claims and wished to dismiss the case.  The representative noted that no other legal substitute had been identified.

 

 

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Gallagher, 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.