Citation Nr: 21026396
Decision Date: 05/03/21	Archive Date: 05/03/21

DOCKET NO. 18-31 692
DATE: May 3, 2021

ORDER

The appeal regarding entitlement to a rating in excess of 10 percent for hypertension is dismissed.

The appeal regarding entitlement to a rating in excess of 30 percent for right knee arthritis is dismissed.

The appeal regarding entitlement to a rating in excess of 10 percent for bilateral hearing loss is dismissed.

The appeal regarding entitlement to a compensable rating for neck cancer is dismissed.

The appeal regarding entitlement to a rating in excess of 60 percent for a lumbosacral disability is dismissed.

The appeal regarding entitlement to service connection for peripheral vascular disease (PVD) is dismissed.

The appeal regarding entitlement to service connection for hypertensive heart disease is dismissed.

The appeal regarding entitlement to service connection for bilateral lower extremity peripheral neuropathy is dismissed.

FINDING OF FACT

On April 13, 2021, the Board was notified that the appellant died in April 2021.

CONCLUSION OF LAW

Due to the death of the appellant, 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 April 1971 to May 1974 and August 1974 to October 1977.  He died in April 2021.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for PVD, hypertensive heart disease, and bilateral lower extremity peripheral neuropathy.  The rating decision also denied: a rating in excess of 10 percent for hypertension; a rating in excess of 30 percent for right knee arthritis; a rating in excess of 60 percent for a lumbosacral disability; and, compensable ratings for neck cancer and bilateral hearing loss.  An April 2018 rating decision assigned a 10 percent rating for bilateral hearing loss from December 29, 2014.

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).

 

 

DONNIE R. HACHEY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Strickland

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.