Citation Nr: 21029883
Decision Date: 05/17/21	Archive Date: 05/17/21

DOCKET NO. 16-38 822
DATE: May 17, 2021

ORDER

Due to the death of the appellant, the claim of entitlement to service connection for hypertension is dismissed.

Due to the death of the appellant, the claim of entitlement to service connection for arthritis is dismissed.

Due to the death of the appellant, the claim of entitlement to service connection for macular degeneration is dismissed.

Due to the death of the appellant, the claim of entitlement to service connection for an acquired psychiatric disorder is dismissed.

Due to the death of the appellant, the claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed.

FINDING OF FACT

On January 29, 2021, the Board was notified that the appellant died on August [REDACTED], 2020.

CONCLUSIONS OF LAW

1. Due to the death of the appellant, the Board has no jurisdiction to readjudicate the merits of the appeal regarding entitlement to service connection for hypertension. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

2. Due to the death of the appellant, the Board has no jurisdiction to readjudicate the merits of the appeal regarding entitlement to service connection for arthritis. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

3. Due to the death of the appellant, the Board has no jurisdiction to readjudicate the merits of the appeal regarding entitlement to service connection for macular degeneration. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

4. Due to the death of the appellant, the Board has no jurisdiction to readjudicate the merits of the appeal regarding entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

5. Due to the death of the appellant, the Board has no jurisdiction to readjudicate the merits of the appeal regarding entitlement to TDIU. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The appellant served on active duty from January 1954 to January 1956. Unfortunately, the appellant died on August [REDACTED], 2020.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In a February 2020 decision, the Board denied the claims above.  The decision was appealed to the United States Court of Appeals for Veterans Claims (Court). However, thereafter, in January 2021, the appeal was dismissed by virtue of the appellants' death and because the Court had not received any request that another party be substituted for the appellant. The appeal was returned to the Board.

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).  The appeal to the Court became moot by virtue of the death of the appellant. Although the appeal was returned to the Board, it too must dismiss the appeal 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 appellant.  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.  38 C.F.R. § 3.1010(b).

 

 

C.A. SKOW

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Krunic, 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.