Citation Nr: 21026276
Decision Date: 04/30/21	Archive Date: 04/30/21

DOCKET NO. 18-24 018
DATE: April 30, 2021

ORDER

The appeal for the issue of whether a timely notice of disagreement (NOD) was filed as to a February 2015 decision that determined that the Veteran’s character of discharge from service is a bar to entitlement to Department of Veterans Affairs (VA) benefits, including health care under 38 U.S.C. Chapter 17, is dismissed.  

FINDING OF FACT

In April 2021, the Board of Veterans’ Appeals (Board) received an electronic report from the Social Security Administration (SSA) indicating that the Veteran passed away in January 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

Preliminary Matters

The Veteran had active duty service with the United States Army from June 1965 to August 1982.  Unfortunately, the Veteran passed away in January 2021.  In  April 2021, VA was notified of his death.  

The Board notes that in his May 2018 substantive appeal (VA Form 9), the Veteran requested a hearing.  Unfortunately, the Veteran passed away before he could be afforded a hearing before the Board.  

Dismissal

Unfortunately, the Veteran passed away during the pendency of the appeal.  Specifically, in April 2021, VA received an electronic report from the SSA indicating that the Veteran had passed away in January 2021.  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).

 

 

B. MULLINS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Y. MacDonald, 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.