Citation Nr: 21021320
Decision Date: 04/12/21	Archive Date: 04/12/21

DOCKET NO. 17-49 333
DATE: April 12, 2021

ORDER

1. Entitlement to an increased disability rating in excess of 40 percent for lower back strain with degenerative changes and intervertebral disc syndrome (IVDS) is dismissed.

2. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy is dismissed.

3. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy is dismissed.

FINDING OF FACT

During the pendency of the appeal, and prior to the promulgation of a decision in the matters, the Board was notified that the Veteran died in February 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, and the appeal is dismissed.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2020).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from August 1974 to August 1978.

Unfortunately, the Veteran died in February 2021, during the pendency of the appeal.  As a matter of law, appellants’ claims do not survive their deaths.  Zevalin 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) (2012); 38 C.F.R. § 20.1302 (2020).

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 (2020).  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 Veteran’s death.  38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010(b) (2020).  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 claims originated (listed on the first page of this decision).  38 C.F.R. § 3.1010(b).

 

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Chad Johnson, 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.