18-15 212

• Court: Board of Veterans' Appeals
• Decided: July 30, 2019
• Docket: 18-15 212
• Status: Unpublished

Opinion

Citation Nr: 19158983 Decision Date: 07/30/19 Archive Date: 07/30/19

DOCKET NO. 18-15 212 DATE: July 30, 2019

ORDER

Service connection for gastroesophageal reflux disease (GERD) is dismissed.

Service connection for erectile dysfunction is dismissed.

Service connection for left lower extremity radiculopathy due to herbicide agent exposure is dismissed.

Service connection for right lower extremity radiculopathy due to herbicide agent exposure is dismissed.

Service connection for left upper extremity radiculopathy due to herbicide agent exposure is dismissed.

Service connection for right upper extremity radiculopathy due to herbicide agent exposure is dismissed.

Service connection for depression and chronic pain is dismissed.

Entitlement to an initial compensable rating for service-connected bilateral hearing loss is dismissed.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is dismissed.

FINDING OF FACT

In July 2019, the Department of Veterans Affairs (VA) was notified that the Veteran died in June 2019.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board of Veterans’ Appeals (Board) has no jurisdiction to adjudicate the merits of the appeal. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; but see 38 U.S.C. § 5121A; 38 C.F.R. §§ 3.1010, 22.1106.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from April 1967 to March 1970, to include service in the Republic of Vietnam. The Veteran was awarded a Bronze Star, among other decorations.

Unfortunately, the Veteran died during the pendency of the appeal. As a matter of law, appellants’ claims do not survive their deaths. See 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 Veteran and must be dismissed for lack of jurisdiction. See 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 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 claims to completion. Such request must be filed not later than one year after the date of the Veteran’s death. See 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) of this title [38 U.S.C. § 5121(a)].” 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a).

Nathan Kroes

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD M. Gonzalez, 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.