Citation Nr: 21021085 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 20-21 913 DATE: April 9, 2021 ORDER The appeal seeking service connection for a right elbow disability, diagnosed as right lateral epicondylitis, is dismissed. The appeal seeking service connection for a left ankle disability, diagnosed as left ankle deltoid ligament sprain, is dismissed. The appeal seeking service connection for posttraumatic stress disorder (PTSD) is dismissed. The appeal seeking an initial rating in excess of 50 percent for migraine headaches is dismissed. The appeal seeking an effective date prior to April 10, 2017, for the award of service connection for migraine headaches, is dismissed. FINDING OF FACT According to the Social Security Administration (SSA), the Veteran died in March 2021, before a decision by the Board on these matters was promulgated. CONCLUSION OF LAW Due to the death of the Veteran, the Board has no jurisdiction at this time to adjudicate the merits of his appeal seeking the following: service connection for a right elbow disability, diagnosed as right lateral epicondylitis; service connection for a left ankle disability, diagnosed as left ankle deltoid ligament sprain; service connection for PTSD; an initial rating in excess of 50 percent for migraine headaches; and an effective date prior to April 10, 2017, for the award of service connection for migraine headaches. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from July 1979 to February 1993. This case comes to the Board of Veterans’ Appeals (Board) on appeal of an August 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, before the Board could consider the appeal, VA received notification that the Veteran had died in March 2021; his death was confirmed by the SSA, a Federal agency. In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted as proof of death. 38 C.F.R. § 3.211(g). As there is no evidence to the contrary, the Board accepts the finding by the SSA as proof of the Veteran’s death during the pendency of the appeal and before the Board promulgated a decision on the appeal seeking the following: service connection for a right elbow disability, diagnosed as right lateral epicondylitis; service connection for a left ankle disability, diagnosed as left ankle deltoid ligament sprain; service connection for PTSD; an initial rating in excess of 50 percent for migraine headaches; and an effective date prior to April 10, 2017, for the award of service connection for migraine headaches. As the Veteran died during the pendency of the appeal, as a matter of law his appeal does not survive his death. Thus, the appeal must be dismissed for lack of jurisdiction. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; 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). 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 claims to completion. Such request must be filed not later than one year after the date of the Veteran’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). In that regard, the Board observes that in March 2021, the purported surviving spouse of the Veteran filed VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC. In a March 2021 letter, the VA acknowledged such filing and advised her on the steps she must take to complete her filing in order for the VA to process her claim. To date, there has been no further submission from her. Thus, the VA has not made any determinations as to whether she is an eligible individual to be substituted as the appellant for purposes of processing the Veteran’s claims to completion. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.