Citation Nr: 21022286
Decision Date: 04/15/21	Archive Date: 04/15/21

DOCKET NO. 17-05 441
DATE: April 15, 2021

ORDER

Entitlement to an initial disability rating in excess of 10 percent for left knee painful motion, from August 26, 2013 to September 2, 2019, is dismissed.

Entitlement to an initial disability rating in excess of 20 percent for left knee painful motion from September 3, 2019, forward, is dismissed.

Entitlement to an initial disability rating in excess of 10 percent for left knee instability from August 26, 2013 to September 2, 2019 is dismissed.

Whether the discontinuation of a separate disability rating for left knee instability from September 3, 2019, forward, was proper, is dismissed.

FINDING OF FACT

On April 9, 2021, the Board was notified that the Veteran died in April 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.  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 from September 1985 to June 1988.

This matter comes before the Board of Veteran’s Appeals (Board) from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

Unfortunately, the Veteran 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).

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Accordingly, the appeal must be dismissed as a matter of law.

 

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	B. Gonzalez-Maldonado

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.