Citation Nr: 21021180
Decision Date: 04/12/21	Archive Date: 04/12/21

DOCKET NO. 19-17 642
Date: April 12, 2021	

ORDER

The appeal concerning the issue of whether the reduction in the amount of the Veteran’s nonservice-connected pension benefits was proper is dismissed.

FINDING OF FACT

Prior to the promulgation of a decision regarding the issue on appeal, the Board of Veterans’ Appeals (Board) was notified in January 2021 correspondence that the Veteran had died.

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the appeal of whether the reduction in the amount of nonservice-connected pension benefits was proper.  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 Navy from December 1963 to March 1966.  Unfortunately, after the appeal had been certified to the Board, the Veteran died.  As a matter of law, appellants’ claims do not survive their deaths.  See Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996).  As such, 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 Department of Veterans Affairs regional 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	K. C. Schumacher, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.