Citation Nr: 21026677
Decision Date: 05/03/21	Archive Date: 05/03/21

DOCKET NO. 18-11 939
DATE: May 3, 2021

ORDER

Entitlement to service connection for obstructive sleep apnea (OSA) to include as secondary to the service-connected disability of posttraumatic stress disorder (PTSD) or coronary artery disease is dismissed.

Entitlement to an evaluation greater than 60 percent for coronary artery disease, with congestive heart failure and atrial fibrillation prior to March 1, 2018 is dismissed.

Entitlement to PTSD currently evaluated as 50 percent disabling is dismissed.

Entitlement to an individual unemployability rating prior to March 1, 2018 is dismissed.

Entitlement to special monthly compensation (SMC) based on housebound criteria met prior to March 1, 2018 is dismissed.

 

FINDING OF FACT

On April 13, 2021, the Board was notified that the Veteran died in March 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 had active service in the Marine Corps from June 1967 to May 1970.

The appeal originates from an August 2017 and April 2018 decision of a Department of Veterans Affairs (VA) Regional Office.

On April 13, 2021, and while the matter was pending appellate review, the Board was notified that the Veteran died in March 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 Veteran' 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).

 

 

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. L. Burroughs, 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.