Citation Nr: 21040006
Decision Date: 07/02/21	Archive Date: 07/02/21

DOCKET NO. 20-10 138
DATE: July 2, 2021

ORDER

1. Whether the reduction of service-connected intervertebral disc syndrome, spinal stenosis status post multiple laminectomies, lumbar facetectomy and posterolateral fusion from 40 percent to 10 percent effective October 1, 2018, was proper, is dismissed.

2. Whether the reduction of service-connected right lower extremity femoral nerve radiculopathy from 10 percent to 0 percent effective October 1, 2018, was proper, is dismissed. 

3. Whether the reduction of service-connected left lower extremity femoral nerve radiculopathy from 10 percent to 0 percent effective October 1, 2018, was proper, is dismissed.

FINDING OF FACT

On June 14, 2021, the Board was notified that the Veteran died in June 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 FINDINGS AND CONCLUSIONS

The Veteran had active service from May 1992 to September 1992 and September 2006 to April 2007.

The within matters originated from a claim for total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) that the Veteran filed in October 2017, which was interpreted as increased ratings claims for the issues addressed herein by the Regional Office. In the September 2018 rating decision, the agency of original jurisdiction reduced the ratings for these three disabilities, and the Veteran filed a notice of disagreement in October 2018. Following a February 2020 Statement of the Case, the matters were certified for appeal to the Board in May 2020. On June 14, 2021, VA was informed that the Veteran had died in June 2021.

As a matter of law, Veteran 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).

 

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Wonderling, 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.