Citation Nr: 23041014
Decision Date: 07/26/23	Archive Date: 07/26/23

DOCKET NO. 19-08 383
DATE: July 26, 2023

ORDER

The appeal seeking a rating greater than 10 percent for degenerative joint disease, right wrist, residual, distal radius fracture is dismissed.

FINDING OF FACT

In July 2023, the Board was notified that the Veteran had died earlier that same month.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the 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 in the United States Army from October 1978 to January 1980, including foreign service.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In March 2019, the Veteran requested to offer testimony at a travel board hearing.  This request was not fulfilled, but has been rendered moot by the death of the appellant.

The appeal was also remanded by the Board in August 2019 for additional development.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Regrettably, VA was informed in July 2023 that the Veteran had died earlier that month.  VA subsequently verified the Veteran's death.

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).  The appeal on its 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 matter 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.  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).

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Accordingly, the pending appeal is hereby dismissed.

 

Evan M. Deichert

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Kovarovic, 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.