Citation Nr: 21029581
Decision Date: 05/14/21	Archive Date: 05/14/21

DOCKET NO. 09-27 384
DATE: May 14, 2021

ORDER

Service connection for a right shoulder/arm disability is dismissed.

A disability rating in excess of 10 percent for traumatic arthritis of the right knee  is dismissed.

FINDING OF FACT

On May 12, 2021, the Department of Veteran's Affairs (VA) acknowledged to the Veteran's estate that they had been informed that the Veteran passed away in May 2021. 

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal, the issues of entitlement to service connection for a right shoulder/arm disability and entitlement to a disability rating in excess of 10 percent for traumatic arthritis of the right knee, 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 1981 to March 1982.  She also served in the Army National Guard of Indiana.  In March 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) of the VA Board of Veterans' Appeals (Board) at a video-conference hearing.  A transcript of the hearing is associated with the claims file.  In June 2013, the Board reopened the Veteran's claim of entitlement to service connection for a right shoulder/arm disability and remanded such, as well as entitlement to a disability rating in excess of 10 percent for traumatic arthritis of the right knee to the VA Regional Office (RO).  The Board remanded the claims again to the RO in October 2015.  

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). 

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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 Veteran should file a request for substitution with the VA office from which the claim originated.  38 C.F.R. § 3.1010 (b).

 

 

P.M. DILORENZO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Department of Veterans Affairs

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.