Citation Nr: 22064483 Decision Date: 11/17/22 Archive Date: 11/17/22 DOCKET NO. 10-38 440 DATE: November 17, 2022 ORDER Entitlement to a rating in excess of 10 percent prior to September 30, 2021, and compensable rating thereafter for service-connected left knee disability based on extension is dismissed. FINDING OF FACT The Department of Veterans Affairs (VA) was notified that the Veteran died in October 2022. 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 had active military service from September 1980 to July 1982. The Veteran died in October 2022. See November 2022 Report of Death. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in March 2014, September 2016, and February 2018 the Board remanded the issue on appeal. During the appeal process, in a March 2020 rating decision, the RO granted a separate rating for instability of his left knee, limited flexion of his left knee, and scar on his left knee. In April 2020, the Veteran opted into the Appeals Modernization Act (AMA) for his claim for increased rating for left knee instability and in May 2020 he opted into AMA for his claim for increased rating for limited flexion of his left knee. Accordingly, the only issue in the legacy appeals system is his claim for increased rating for his left knee disability based on extension. In May 2020, the Board denied the Veteran's claim for increased rating for his left knee disability based on limited extension. The Veteran appealed this decision to the Court of Appeal for Veterans Claims (Court). In March 2021, the Court vacated the Board's May 2020 decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). In August 2021 and April 2022, the Board again remanded the issue for further evidentiary development and adjudication. The issue is once again before the Board. Entitlement to a rating in excess of 10 percent prior to September 30, 2021, and compensable rating thereafter for service-connected left knee disability based on extension is dismissed. As a matter of law, appellants' claims do not survive their deaths. Zevalkink v. Brown, 102 F. 3d 1236, 1243-44 (Fed. Cir. 1996). The Veteran died during the pendency of the appeal. Therefore, the appeal is moot by virtue of his death, and the Board must dismiss it for lack of jurisdiction. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. 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. Moreover, 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 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 review of the records shows that the custodian filing for child filed an application for dependency and indemnity compensation. See November 2022 VA 21-534EZ Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child. However, as of now, the claimant has not been recognized as a proper substitute. As such, the issue on appeal must be dismissed for lack of jurisdiction. Christopher Seppanen Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.