Citation Nr: 21040676
Decision Date: 07/06/21	Archive Date: 07/06/21

DOCKET NO. 20-06 129
DATE: July 6, 2021

ORDER

The appeal is dismissed.

 

FINDING OF FACT

The Veteran died in June 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.  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 June 1981 June 2001.

The case is on appeal from a December 2017 rating decision.

1. A compensable rating for hallux valgus with bunion of the right foot.

2. A compensable rating for hallux valgus with bunion of the left foot.

3. Service connection for anxiety.

4. Whether new and material evidence has been received to reopen a previously denied claim of service connection for sleep apnea.

5. Whether new and material evidence has been received to reopen a previously denied claim of service connection for tension headaches.

6. Whether new and material evidence has been received to reopen a previously denied claim of service connection for major depression.

7. A total disability rating based on individual unemployability (TDIU).

Unfortunately, the Veteran died during the pendency of the appeal.  In June 2021, prior to a Board decision on the matter, VA was notified that the Veteran passed away in June 2021.  This was confirmed through a Social Security Administration (SSA) database record which was associated with the claims file.  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); 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 claims 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).

 

 

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Isaacs, Brandon

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.