16-21 209

• Court: Board of Veterans' Appeals
• Decided: August 23, 2018
• Docket: 16-21 209
• Status: Unpublished

Opinion

Citation Nr: 1829833 Decision Date: 08/23/18 Archive Date: 09/05/18

DOCKET NO. 16-21 209 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.

REPRESENTATION

Appellant represented by: Texas Veterans Commission

ATTORNEY FOR THE BOARD

J. T. Hutcheson, Counsel

INTRODUCTION

The Veteran had active service from June 1969 to March 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 Department of Veterans Affairs (VA) rating decision which granted service connection for bilateral hearing loss and assigned a 0 percent rating for that disability, effective January 14, 2014.

FINDING OF FACT

In March 2018, VA was notified that the Veteran died in January 2018.

CONCLUSION OF LAW

In light of the Veteran's death, the Board has no jurisdiction to adjudicate the merits of the Veteran's claim 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 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330 (1997); Landicho v. Brown, 7 Vet. App. 42 (1994). This appeal on the 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 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. Any request must be filed not later than one year after the date of the Veteran'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 38 U.S.C. § 5121(a). 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).

ORDER

The appeal is dismissed.

____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs