Citation Nr: 21023228
Decision Date: 04/20/21	Archive Date: 04/20/21

DOCKET NO. 16-47 737
DATE: April 20, 2021

ORDER

Entitlement to service connection for a low back disability, to include on a secondary basis, is dismissed.

Entitlement to service connection for a right knee disability is dismissed.

Entitlement to service connection for bilateral hearing loss is dismissed.

FINDING OF FACT

In April 2021, the Board was notified that the appellant died in February 2021.

CONCLUSION OF LAW

Due to the death of the appellant, 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 January 1972 to September 1974, with additional service in the Army Reserve.  He died in April 2020.  Thereafter, in June 2020, the Veteran’s surviving spouse was substituted as the appellant.  

These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  

In April 2019, the Veteran testified at a Travel Board hearing before the undersigned.  A copy of the transcript of that hearing has been associated with the claims file.  

By way of background, these matters were previously before the Board in November 2019, when they were remanded for further development.

The Veteran died in April 2020.  See May 2020 Death Certificate.  The appellant, the Veteran’s surviving spouse, was properly substituted in this case.  See June 2020 Correspondence.  Unfortunately, the substitute appellant also died during the pendency of the appeal.  In this regard, an April 2021 response to an inquiry to the Social Security Administration reflected that the appellant died in February 2021.  See April 2021 SSA Profile and Benefit Data.  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).

 

 

S. HENEKS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K. Justis, 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.