Citation Nr: 21032308
Decision Date: 05/26/21	Archive Date: 05/26/21

DOCKET NO. 11-31 538
DATE: May 26, 2021

ORDER

Entitlement to service connection for a right great toe disability, to include degenerative arthritis and to include as secondary to degenerative arthritis of the lumbar sacral spine, is dismissed. 

Entitlement to service connection for bilateral plantar calcaneal spurs, to include as secondary to degenerative arthritis of the lumbar sacral spine, is dismissed.

FINDINGS OF FACT

In April 2019, the Board was notified by the Department of Veterans Affairs (VA) Regional Office (RO), that the appellant had died on April [REDACTED], 2019.

CONCLUSIONS OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of his claims. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1974 to September 1979. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of a Department of Veterans Affairs Regional Office. In August 2018, the Board denied the claim. The Veteran appealed and unfortunately died on April [REDACTED], 2019, during the pendency of the appeal.  In January 2020 the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand.

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).  These appeals on the merits have 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 Veteran.  38 C.F.R. § 20.1106.  

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The Board's dismissal of these appeals 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 claimant should file a request for substitution with the VA office from which the claim originated.  38 C.F.R. § 3.1010(b).

 

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Anthony L. Hines 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.