Citation Nr: 21024840
Decision Date: 04/26/21	Archive Date: 04/26/21

DOCKET NO. 20-27 440
DATE: April 26, 2021

ORDER

The appeal is dismissed.

 

FINDING OF FACT

The Veteran died in April 2021, prior to the issuance of a final Board decision.

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; 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1975 to June 1979 and from October 1993 to June 1994.

The case is on appeal from an August 2018 rating decision.

1. An initial rating in excess of 50 percent for chronic maxillary, frontal ethmoid, and sphenoid sinusitis.

2. An initial rating in excess of 30 percent for non-allergic rhinitis and bilateral turbinate hypertrophy.

3. An effective date earlier than June 21, 2018, for service connection for chronic maxillary, frontal ethmoid, and sphenoid sinusitis.

4. An effective date earlier than June 21, 2018, for non-allergic rhinitis and bilateral turbinate hypertrophy.

5. Service connection for septal deviation.

Unfortunately, the Veteran died during the pendency of the appeal.  In April 2021, prior to a Board decision on the matter, the Veteran’s surviving spouse notified VA that the Veteran passed away in April 2021.  This was confirmed through a Social Security Administration (SSA) database record which was associated with the claims file.  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.  See 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 claims to completion.  Such request must be filed not later than one year after the date of the appellant’s death.  See 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; see 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).

 

 

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	B. Isaacs, 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.