Citation Nr: 21022927
Decision Date: 04/19/21	Archive Date: 04/19/21

DOCKET NO. 17-27 470
DATE: April 19, 2021

ORDER

1. Entitlement to an effective date of June 10, 2005, for the award of service connection for radiculopathy of the right lower extremity is dismissed.

2. Entitlement to an initial rating in excess of 10 percent prior to June 3, 2014 for degenerative disc disease and degenerative joint disease of the mid and lower lumbar spine (lumbar spine disability) is dismissed.

3. Entitlement to a rating in excess of 40 percent from June 3, 2014 for the lumbar spine disability is dismissed.

4. Entitlement to an initial compensable rating for a linear median surgical scar of the lumbar region is dismissed.

5. Entitlement to a rating in excess of 20 percent from June 3, 2014 for radiculopathy of the right lower extremity is dismissed.

6. Entitlement to an initial rating in excess of 10 percent for osteoarthritis of the left knee (left knee disability), to include on an extraschedular basis, is dismissed.

7. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the right knee (right knee disability), to include on an extraschedular basis, is dismissed.

8. Entitlement to an effective date prior to June 3, 2014 for the award of a total disability rating for compensation based on individual unemployability (TDIU) is dismissed.

9. Entitlement to an effective date prior to June 3, 2014 for eligibility for dependents’ educational assistance (DEA) is dismissed.

FINDINGS OF FACT

In March 2021, the Board was notified that the Veteran died in March 2021.

CONCLUSIONS 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) (2012); 38 C.F.R. § 20.1302 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1963 to February 1966.

Unfortunately, the appellant 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 Veteran 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).

 

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Keninger, 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.