Citation Nr: 21027114
Decision Date: 05/04/21	Archive Date: 05/04/21

DOCKET NO. 18-34 032A
DATE: May 4, 2021

ORDER

The appeal as to whether new and material evidence has been received sufficient to reopen the previously denied claim for service connection for diabetes mellitus is dismissed.

The appeal as to whether new and material evidence has been received sufficient to reopen the previously denied claim for service connection for pancreatitis is dismissed.

The appeal as to whether new and material evidence has been received sufficient to reopen the previously denied claim for service connection for neurological weakness in the hands and feet is dismissed.

The appeal as to the claim of service connection for amputation of the left leg above the knee, to include as secondary to diabetes mellitus and/or posttraumatic stress disorder (PTSD) is dismissed.

FINDING OF FACT

On March 31, 2021, during the pendency of the appeal, the Board was notified of the Veteran's death on March [REDACTED], 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 August 1969 to August 1971.

This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision.  In that decision, the RO denied reopening of the claims for service connection for diabetes mellitus and pancreatitis because the evidence received was not new and material.  Furthermore, the RO denied service connection for bilateral peripheral neuropathy on the merits and also denied the initial claim for service connection for amputation of the left leg above the knee secondary to diabetes.

In January 2017, VA received the Veteran's Notice of Disagreement (NOD).  In June 2018, the RO issued a Statement of the Case (SOC).  In July 2018, VA received the Veteran's VA Form 9 appeal to the Board.

In July 2019 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 March [REDACTED], 2021, during the pendency of the appeal.  See SSA inquiry uploaded on March 31, 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.