Citation Nr: 25005645 Decision Date: 04/24/25 Archive Date: 04/24/25 DOCKET NO. 17-39 642 DATE: April 24, 2025 ISSUE Entitlement to a disability evaluation in excess of 20 percent prior to March 22, 2024 for service connected right total ankle arthroplasty, and in excess of 40 percent from that date therein. ORDER The appeal concerning the issue of Entitlement to a disability evaluation in excess of 20 percent prior to March 22, 2024 for service connected right total ankle arthroplasty, and in excess of 40 percent from that date therein is dismissed, without prejudice. FINDING OF FACT The Board of Veteran's Appeals (Board) has been notified that the Veteran died in February 2025 while this appeal was pending before the Board. 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; 38 C.F.R. § 20.1302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1977 to July 1983. The Veteran appeared before a Veterans Law Judge (VLJ) in a Board hearing in February 2020 to present testimony on the issue on appeal. A transcript of the hearing has been associated with the record. The VLJ that conducted this hearing is no longer available to participate in the appeal. As that person is no longer available, this appeal has been reassigned to the undersigned VLJ. See 38 C.F.R. § 20.206(b). In February 2023, the Board sent a letter to the Veteran providing him with an opportunity to present testimony at a new hearing before a different VLJ. As explained in that letter, as the Board did not receive a response within 30 days from the date of the letter, the Board may proceed. Unfortunately, the Veteran died in February 2025, during the pendency of the appeal. See February 2025 VA 27-0820a Report of First Notice of Death. As a matter of law, appellants' claims do not survive their deaths. See Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). Therefore, the Board cannot issue a decision on the underlying claim at this time and must dismiss this appeal. 38 C.F.R. § 20.1302(a). In reaching this determination, the Board intimates no opinion as to the merits of any issue on appeal or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106. The Board's dismissal does not affect the right of an eligible person to take the Veteran's place to continue the appeal on the pending claim. This process, known as substitution, must be requested within one year of the Veteran's death. 38 C.F.R. § 3.1010(a), (b). Individuals who may be eligible for substitution include the Veteran's surviving spouse, dependent children, dependent parents, and those who bore the expenses of last sickness or burial. 38 C.F.R. §§ 3.1000(a), 3.1010(a). In this case, no one has requested to substitute for the Veteran. Any person who would like to request substitution must submit a VA Form 21P-0847, "Request for Substitution of Claimant Upon Death of Claimant." The form and filing instructions are available online at https://www.va.gov/find-forms/. If the AOJ receives a request for substitution within one year of the Veteran's death and then grants the request, this dismissed appeal will resume its place on the Board's docket. 38 C.F.R. § 20.1302(a). The Board does note VA has received a March 2025 VA 21-534EZ Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child, however, this is separate and distinct from a request to substitute for the Veteran in the pending claim. Accordingly, the appeal is dismissed. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. J. 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.