Citation Nr: 21021016 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 20-20 876A DATE: April 9, 2021 ORDER The issue of whether a June 2019 Board of Veterans’ Appeals (Board) decision contained clear and unmistakable error (CUE) in denying entitlement to a total disability rating based upon individual unemployability (TDIU) through December 2, 2018 is dismissed. FINDINGS OF FACT 1. On August 26, 2020, the Board was notified that the Veteran died on August [REDACTED], 2020. The Veteran passed away prior to the issuance of a final decision on a May 2020 motion for revision of a June 2019 Board decision on the basis of CUE. 2. The Veteran’s surviving spouse lacks standing to pursue the May 2020 motion. CONCLUSION OF LAW Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the May 2020 CUE motion. 38 U.S.C. §§ 7104(a), 7111; 38 C.F.R. §§ 20.1400, 20.1401(b), 20.1402. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from September 1954 to August 1956. Unfortunately, he died in August 2020. Prior to his death, the Veteran filed a motion in May 2020 for revision of a June 2019 Board decision on the basis of CUE. Unfortunately, the Veteran died in August 2020, which was prior to the issuance of a ruling on his May 2020 motion for revision or reversal on the grounds of CUE of a June 2019 Board decision which denied entitlement to a TDIU through December 2, 2018. As a matter of law, a moving party’s motion does not survive his or her death. 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). Accordingly, the Veteran’s May 2020 motion became moot by virtue of his death, and, in September 2020, the Board dismissed the motion for lack of jurisdiction. 38 U.S.C. § 7111(a); 38 C.F.R. § 20.1401(b). Later in September 2020, the Department of Veterans Affairs (VA) approved a request for substitution filed by the Veteran’s surviving spouse, C.B. As indicated on a VA Form 21-0947 received by VA on August 25, 2020, if C.B. was granted substitute party status, she desired to revive the Veteran’s May 2020 motion and continue his request for revision of the June 2019 Board decision. Although C.B.’s substitution request was granted, substitution may only be awarded if a claim or appeal is pending. 38 C.F.R. § 3.1010 (g)(1). In regard to the issue of entitlement to a TDIU through December 2, 2018, the Veteran did not have an appeal pending before the Board at the time of his death in August 2020. While substitution by another party for the decedent may revive an appeal, such substitution is available only for those claims and appeals for periodic monetary benefits pending at the time of death. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. Here, the pending motion for revision or reversal on the grounds of CUE was not an appeal, but rather was a collateral attack on the June 2019 final Board decision. As a result, the May 2020 motion was rendered moot by the Veteran’s death and C.B. is not a valid substitute regarding continued pursuit of the CUE motion. Further, C.B. does not have standing to file or pursue a motion for reversion or reversal of a Board decision on the grounds of CUE. Specifically, review to determine whether CUE exists in a final Board decision may be initiated by the Board, on its own motion, or by a party to that decision. 38 U.S.C. §§ 501(a), 7111; 38 C.F.R. § 20.1400(a). 38 C.F.R. § 20.1400(b) defines “party” as “any party to the proceeding before the Board that resulted in the final Board decision which is the subject of a motion[.]” Here, C.B. was not a party to the June 2019 proceeding before the Board and, thusly, she does not have standing to file a motion for revision of the decision on the basis of CUE. As such, the Board concludes that the May 2020 motion must be dismissed. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.