Citation Nr: 21040796
Decision Date: 07/07/21	Archive Date: 07/07/21

DOCKET NO. 20-03 264
DATE: July 7, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

On June 28, 2021 the Board was notified that the Veteran died in April 2021.

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); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1971 to September 1974.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). 

In an August 2018 decision the Board denied entitlement to an increased rating for PTSD and granted entitlement to a TDIU. The Veteran did not appeal the denial of the increased rating claim, and therefore that issue is no longer before the Board. 38 C.F.R. § 20.1100. The RO effectuated the grant of entitlement to a TDIU in a rating decision issued in November 2018, assigning an effective date of May 22, 2012. The Veteran perfected an appeal of the assigned effective date to the Board in January 2020. 

In a rating decision issued in February 2020, the RO awarded an earlier effective date of August 29, 2011, for the award of a TDIU. However, as this does not constitute a full grant of the benefits sought on appeal, the issue is still properly on appeal before the Board. Ab v. Brown, 6 Vet. App. 35 (1993). The issue has been recharacterized to reflect the new effective date assigned in February 2020.

Dismissal

Unfortunately, the Veteran died 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. 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).

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Wendell, 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.