Citation Nr: 22016272
Decision Date: 03/21/22	Archive Date: 03/21/22

DOCKET NO. 15-20 805
DATE: March 21, 2022

ORDER

The appeal of the claim for entitlement to an initial compensable rating prior to March 2, 2018, and in excess of 10 percent thereafter for service-connected bilateral hearing loss, is dismissed.

The appeal of the claim for entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is dismissed.

The appeal of the claim for entitlement to an earlier effective date for eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. chapter 35 prior to September 19, 2011, is dismissed.

The appeal of the claim for entitlement to an earlier effective date for a total disability rating based on individual unemployability (TDIU) prior to March 2, 2018, is dismissed.

FINDING OF FACT

On January 18, 2022, the Board was notified that the Veteran died in January 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

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 appellant 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 appellant'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).

In February 2022, the Veteran's surviving spouse submitted VA form 21-534EZ, Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child, which is considered a request for substitution. However, the AOJ has not yet issued a decision on a request for substitution. If the Veteran's spouse's request for substitution is granted by the AOJ, the appeal shall resume its original place on the Board's docket. 38 C.F.R. § 20.1302(a). If the Veteran's spouse's request for substitution is denied by the AOJ, she may appeal that decision to the Board, and if perfected, the appeal shall assume the same place on the docket as the Veteran's original claims. 38 C.F.R. §§ 3.1010(e)(2); 20.1302(a).

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Zachery S.C. Luce, 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.