Citation Nr: 21030978
Decision Date: 05/20/21	Archive Date: 05/20/21

DOCKET NO. 97-33 041A
DATE: May 20, 2021

ORDER

Entitlement to service connection for a growth near spine is dismissed. 

Entitlement to a rating in excess of 10 percent for left knee sprain with osteoarthritis is dismissed. 

Entitlement to a rating in excess of 10 percent for right knee pain with ostearthritis and residual surgical scar is dismissed. 

FINDING OF FACT

The Veteran died in May 2021. 

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 U.S. Marine Corps from April 1975 to November 1975. 

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

In August 2006 and January 2012, the Veteran provided testimony at hearing before the undersigned Veterans Law Judge (VLJ); the transcripts are of record.  

The issues on appeal have been remanded several times for additional development.  These matters were most recently before the Board in September 2018.  

Death Dismissal

1. Entitlement to service connection for a growth near spine. 

2. Entitlement to a rating in excess of 10 percent for left knee sprain with osteoarthritis. 

3. Entitlement to a rating in excess of 10 percent for right knee pain with ostearthritis and residual surgical scar. 

Unfortunately, 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.  

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 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).

 

 

C. CRAWFORD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Kuzniar, 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.