Citation Nr: 21024708
Decision Date: 04/26/21	Archive Date: 04/26/21

DOCKET NO. 17-26 081
DATE: April 26, 2021

ORDER

The claim for entitlement to an initial rating in excess of 10 percent for a low back disability prior to October 5, 2020, and in excess of 20 percent thereafter, to include entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), is dismissed.

FINDING OF FACT

In April 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 October to November 1976, from November 1978 to February 1980, and from April to May 1980.  He died in April 2021.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which granted service connection for a low back disability and assigned an initial 10 percent rating, effective July 29, 2009.

In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

This matter was previously before the Board in June 2020.  At that time, the Board remanded the claim for further evidentiary development, to include a VA examination.

While the matter was in remand status, in a November 2020 rating decision, the RO increased the rating for the Veteran’s service-connected low back disability to 20 percent, effective October 5, 2020.

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 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).

 

 

K. Conner

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Ruddy, 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.