Citation Nr: 21029547
Decision Date: 05/13/21	Archive Date: 05/13/21

DOCKET NO. 20-19 576
DATE: May 13, 2021

ORDER

The claim for service connection for post-operative pneumothorax with removal of multiple cysts claimed as lung/breathing problems is dismissed.  

The claim for a total disability rating based on individual unemployability as due to service-connected disability (TDIU) is dismissed.

FINDING OF FACT

In May 2021, VA learned that the Veteran had died in April 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 duty service in the United States Army from February 1973 to January 1976.  He had three years additional reserve duty service in the South Carolina Army National Guard.  

The Veteran had previously been represented by a private attorney.  In April 2021, prior to his death, the Veteran appointed the above listed Veterans Service Organization as his representative.  Though this request was made more than 90 days after the case was certified to VA, the Board has updated the Veteran's representative in line with his wishes.

As noted above, the Veteran had two appeals pending before the Board.  In May 2021, VA learned that the Veteran died in April 2021.

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.  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).  

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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).

 

 

Evan M. Deichert

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Lyons, 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.