190624-10357

• Court: Board of Veterans' Appeals
• Decided: November 27, 2019
• Docket: 190624-10357
• Status: Unpublished

Opinion

Citation Nr: AXXXXXXXX Decision Date: 11/27/19 Archive Date: 11/27/19

DOCKET NO. 190624-10357 DATE: November 27, 2019

ORDER

The appeal is dismissed.

FINDING OF FACT

On November 1, 2019, the Board was notified that the appellant died in October 2019.

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); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board notes that the rating decision on appeal was issued in May 2019. In June 2019, the Veteran elected the modernized review system. 38 C.F.R. § 19.2(d).

The Veteran served on active duty from June 1956 to June 1959 and from August 1962 to August 1965. The Veteran timely appealed the May 2019 AMA rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ).

Death Dismissal

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, 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. 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.

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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. 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 (listed on the first page of this decision). 38 C.F.R. § 3.1010(b).

D. JOHNSON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board J. Telamour

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.