Citation Nr: 21026232
Decision Date: 04/30/21	Archive Date: 04/30/21

DOCKET NO. 17-26 362
DATE: April 30, 2021

ORDER

The appeal for a disability rating in excess of 20 percent for the service-connected cold weather injury residuals to the right foot is dismissed.

The appeal for a disability rating in excess of 20 percent for the service-connected cold weather injury residuals to the left foot is dismissed.

FINDING OF FACT

On April 27, 2021, during the pendency of the appeal, the Board was notified of the Veteran’s death on April [REDACTED], 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 August 1950 to August 1953. 

This case is before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision.  In that rating decision, the RO denied entitlement to disability ratings in excess of 20 percent for the service-connected cold weather injury residuals of the right and left feet. 

In November 2015, VA received the Veteran’s Notice of Disagreement (NOD).  In May 2017, the RO issued a Statement of the Case (SOC).  In May 2017, VA received the Veteran’s VA Form 9 appeal to the Board. 

Unfortunately, the Veteran died during the pendency of the appeal.

In August 2020, the Board remanded the case for further development and adjudicative action. According to records obtained from the Social Security Administration (SSA), the Veteran died on April [REDACTED], 2021, before the Board promulgated a decision in this appeal.  See SSA inquiry uploaded on April 28, 2021.

In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted as proof of death. 38 C.F.R. § 3.211(g).

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 (listed on the first page of this decision). 38 C.F.R. § 3.1010(b).

 

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Small, Attorney Advisor

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.