Citation Nr: 21041793
Decision Date: 07/10/21	Archive Date: 07/10/21

DOCKET NO. 16-58 917
DATE: July 10, 2021

ORDER

Entitlement to a total disability rating based on individual unemployability on an extraschedular basis prior to July 26, 2010 is dismissed.

Entitlement to service connection for a low back disability (to include lumbosacral spondylosis with IVDS) is dismissed.

Entitlement to service connection for an acquired psychiatric disorder secondary to service-connected disabilities is dismissed.

FINDING OF FACT

On July 6, 2021, the Board was notified by the Department of Veterans Affairs (VA) Regional Office, Janesville, Wisconsin, that the Veteran died in June 2021.

CONCLUSION OF LAW

Due to the death of the appellant, 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 FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1977 to April 1981, and from July 1987 to September 2003. 

These matters are on appeal to the Board of Veterans' Appeals (Board) from a December 2013 rating decision.  A Board hearing was held by the undersigned Veterans Law Judge in July 2019.  The claims were subsequently remanded in November 2019 and February 2021.  

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.  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 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; 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).

 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.N. Moats

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.