Citation Nr: 21031176
Decision Date: 05/20/21	Archive Date: 05/20/21

DOCKET NO. 16-13 548
DATE: May 20, 2021

ORDER

Entitlement to service connection for bilateral hearing loss is dismissed.

FINDING OF FACT

On May 3, 2021, the Department of Veteran's Affairs (VA) was notified that the Appellant passed away on May 2, 2021.

CONCLUSION OF LAW

The criteria for dismissal of the claim of entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from June 1973 to June 1976.  The Veteran appeared at a hearing before the undersigned Veterans Law Judge (VLJ) of the VA Board of Veterans' Appeals (Board) in December 2018, a transcript of the hearing is of record.  In July 2019, the Board remanded this claim to the VA Regional Office (RO) for additional development.  

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, of the claim of entitlement to service connection for bilateral hearing loss has become moot by virtue of the death of the Appellant and must be dismissed for lack of jurisdiction.  See 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.  See 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; see 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 Appellant 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.