Citation Nr: 21026260
Decision Date: 04/30/21	Archive Date: 04/30/21

DOCKET NO. 18-25 510
DATE: April 30, 2021

ORDER

The appeal seeking to reopen claims of service connection for hearing loss and tinnitus is dismissed.

FINDING OF FACT

In April 2021, the Board received notification that the Veteran died in April 2021.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction at this time to adjudicate the merits of his appeal seeking to reopen claims of service connection for hearing loss and tinnitus.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.  

REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant is a Veteran who served on active duty from April 1971 to April 1972.  This case comes to the Board of Veterans’ Appeals (Board) on appeal of a May 2015 Department of Veterans Affairs (VA) rating decision, which confirmed and continued a previous (final) denial of the claims in an August 2008 rating decision.  On his substantive appeal received in May 2018, the Veteran requested a Board videoconference hearing before a Veterans Law Judge; a hearing was scheduled before the undersigned in April 2021.  However, before the scheduled Board videoconference hearing could take place, the Board was notified that the Veteran had died earlier in the month.  The Veteran’s death certificate is of record, confirming that he died in April 2021.    

As the Veteran died during the pendency of the appeal, as a matter of law his appeal does not survive his death.  Thus, the appeal must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; 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).  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 Veteran’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).  

 

 

George R. Senyk

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Debbie Breitbeil, 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.