Citation Nr: 21028752
Decision Date: 05/12/21	Archive Date: 05/11/21

DOCKET NO. 20-07 661
DATE: May 12, 2021

ORDER

The appeal seeking to reopen the reopen the claim of service connection for a left knee disability is dismissed.

The appeal seeking to reopen the claim of service connection for a right knee disability is dismissed.

The appeal seeking service connection for a back disability is dismissed.

The appeal seeking service connection for an eye disability is dismissed.

The appeal seeking compensation under 38 U.S.C. § 1151 for residuals of fluid in the back is dismissed.

The appeal seeking compensation under 38 U.S.C. § 1151 for left knee disability is dismissed.

The appeal seeking compensation under 38 U.S.C. § 1151 for right knee disability is dismissed.

FINDING OF FACT

In May 2021, VA received notification of the Veteran's death.

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 served on active duty in the U.S. Army from June 1961 to May 1964.

In the January 2021 remand, the Board interpreted the Veteran's claims for back and knee disabilities as entitlement under 38 U.S.C. § 1151.  However, because the Agency of Original Jurisdiction (AOJ) adjudicated the issues as service connection and the Veteran properly appealed those decisions, the issues of service connection for back and knee disabilities are also on appeal before the Board.

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 appellant and must be dismissed for lack of jurisdiction.  See 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.  See 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; see 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).

 

 

PAUL E. METZNER

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A.P. Armstrong

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.