Citation Nr: 21020874
Decision Date: 04/08/21	Archive Date: 04/08/21

DOCKET NO. 18-25 185
DATE: April 8, 2021

ORDER

The appeal of entitlement to revision of an August 14, 1972, rating decision that awarded service connection for depressive reaction psychoneurosis with an initial 10 percent disability rating, effective April 19, 1972, on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, is dismissed.

FINDING OF FACT

In April 2021, while the appeal to the Board was pending, and prior to the issuance of a final decision, VA received notice that the Veteran died on February [REDACTED], 2021.  

CONCLUSION OF LAW

Due to the death of the Veteran, 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 U.S. Navy from October 1958 to October 1960, and in the U.S. Air Force from July 1961 to May 1965.  This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). That decision denied revision of the August 1972 rating decision with regard to the effective date of service connection and the assigned evaluation; the Veteran sought an effective date from his date of separation from service, as well as a 100 percent rating from that date.

Unfortunately, the Veteran 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). This appeal on the merits has become moot by virtue of the death of the Veteran 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).

 

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G.A. Ong, 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.