Citation Nr: 21021009
Decision Date: 04/09/21	Archive Date: 04/09/21

DOCKET NO. 20-12 399
DATE: April 9, 2021

ORDER

The appeal for an effective date prior to April 27, 2017, for the grant of limitation of motion with pain, left shoulder, is dismissed 

The appeal for a rating greater than 20 percent for limitation of motion with pain, left shoulder, is dismissed. 

The appeal for a rating greater than 10 percent from November 1, 1997 to April 27, 2017, and greater than 20 thereafter, for old dislocation of the left shoulder, is dismissed.

The appeal for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is dismissed. 

FINDING OF FACT

On March 22, 2021, the Board was notified that the appellant died in March 2021.

CONCLUSIONS OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the appeal for an effective date prior to April 27, 2017, for the grant of limitation of motion with pain, left shoulder.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the appeal for a rating greater than 20 percent for limitation of motion with pain, left shoulder.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the appeal for a rating greater than 10 percent from November 1, 1997 to April 27, 2017, and greater than 20 thereafter, for old dislocation of the left shoulder.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the appeal for a total disability rating based on individual unemployability due to service-connected disabilities.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

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).  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).

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Patrick C. Brady, Attorney Advisor

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.