14-42 604

• Court: Board of Veterans' Appeals
• Decided: September 26, 2018
• Docket: 14-42 604
• Status: Unpublished

Opinion

Citation Nr: 1829883 Decision Date: 09/26/18 Archive Date: 10/03/18

DOCKET NO. 14-42 604 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in San Diego, California

THE ISSUES

1. Entitlement to an intial rating in excess of 20 percent for peripheral neuropathy of the right lower extremity.

2. Entitlement to an intial rating in excess of 20 percent for peripheral neuropathy of the left lower extremity.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

J. Negron, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Navy from March 1965 to May 1985.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in San Diego, California.

FINDING OF FACT

On September 17, 2018, the Board was notified by the Veteran's representative that the appellant died in August 2018.

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) (2012); 38 C.F.R. § 20.1302 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the appellant 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. See 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2017).

In reaching this determination, the Board intimates no opinion as to the merits of the appeals or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106 (2017).

The Board's dismissal of the appeals 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. See 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010(b) (2017). 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 (2012); see 38 C.F.R. § 3.1010(a) (2017). 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 (listed on the first page of this decision). 38 C.F.R. § 3.1010(b) (2017).

ORDER

The appeals for entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the right lower extremity, and entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the left lower extremity are dismissed.

JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs