Citation Nr: 21040066
Decision Date: 07/02/21	Archive Date: 07/02/21

DOCKET NO. 19-03 545
DATE: July 2, 2021

ISSUE

Entitlement to special monthly compensation based on aid and attendance.

ORDER

The appeal of entitlement to special monthly compensation based on aid and attendance is dismissed.

FINDING OF FACT

In May 2021, the Board was notified that the Veteran died that same month.

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. 38 U.S.C. § 7104 (a) (West 2014); 38 C.F.R. § 20.1302 (2018).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the United States Army from May 1968 to April 1971. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by the Department of Veterans Affairs (VA), which denied the Veteran's claim for entitlement to special monthly compensation based on aid and attendance.

Regrettably, the Veteran died in May 2021 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 has become moot by virtue of the death of the Veteran and must be dismissed for lack of jurisdiction. See 38 U.S.C. § 7104 (a) (West 2014); 38 C.F.R. § 20.1302 (2018).

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 (2018). 

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 (West 2014); 38 C.F.R. § 3.1010 (b) (2018). 

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 (West 2014); see 38 C.F.R. § 3.1010 (a) (2018). 

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) (2018).

 

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Little, 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.