17-33 522 ( 2018 )

Citation Nr: 1829852
Decision Date: 09/06/18 Archive Date: 09/24/18
DOCKET NO. 17-33 522 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey
THE ISSUE
Entitlement to service connection for residuals of a right knee injury.
REPRESENTATION
Appellant represented by: New Jersey Department of Military and Veterans' Affairs
ATTORNEY FOR THE BOARD
Catherine Cykowski
INTRODUCTION
The Veteran had active duty service from August 1972 to August 1974.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.
FINDING OF FACT
On May 21, 2018, the Board was notified by the Department of Veterans Affairs (VA) New Jersey Health Care system, that the appellant died in April 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. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017).
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 (2017).
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. 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 appeal is dismissed.
JENNIFER HWA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs