Citation Nr: 21031557
Decision Date: 05/24/21	Archive Date: 05/24/21

DOCKET NO. 19-13 999
DATE: May 24, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

The Veteran died in April 2021, prior to the issuance of a final Board decision.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  The criteria for dismissal of a compensable rating for hearing loss have been met.  38 U.S.C. § 7104; 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1970 to January 1972.

The case is on appeal from a November 2018 rating decision.

In an April 2019 substantive appeal, the Veteran requested a videoconference hearing.  Unfortunately, a videoconference hearing was not scheduled prior to the Veteran passing away.

A compensable rating for hearing loss.

Unfortunately, the Veteran died during the pendency of the appeal.  In May 2021, prior to a Board decision on the matter, information from the Social Security Administration (SSA) was associated with the file showing that the Veteran passed away in April 2021.  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 appellant 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).  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).

 

 

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Becton, 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.