Citation Nr: 21029648
Decision Date: 05/14/21	Archive Date: 05/14/21

DOCKET NO. 16-32 601
DATE: May 14, 2021

ORDER

Entitlement to service connection for pancreatitis is dismissed.

FINDING OF FACT

On November 3, 2020 the Department of Veterans Affairs (VA) was notified that the Veteran died in July 2020.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the 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 United States Marine Corps from June 1999 to July 2004. He died in July 2020. 

This matter was previously denied by the Board of Veterans' Appeals (Board) in September 2019. The Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court). The Court was notified of the Veteran's death in July 2020; however, the Veteran's counsel was unable to obtain a death certificate. On November 4, 2020, VA provided the Court with a copy of a Social Security Administration inquiry and an obituary, which both reflected that the Veteran died on July [REDACTED], 2020. Thus, the Court vacated the Board's decision in a February 2021 Memorandum Decision and dismissed the appeal for lack of jurisdiction. The issue therefore returns to the Board for dismissal. 

As noted above, the Veteran died during the pendency of the appeal. As a matter of law, Veterans' 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.

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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 also 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'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. 38 C.F.R. § 3.1010(b).

 

 

MICHAEL E. KILCOYNE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	V. Geer, Associate 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.