# 190301-5360

> Board of Veterans' Appeals · August 27, 2019

URL: https://www.frixlaw.com/law-library/cases/4449505

## Case

- **Court:** Board of Veterans' Appeals
- **Decided:** August 27, 2019
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Citation Nr: AXXXXXXXX
Decision Date: 08/27/19	Archive Date: 08/26/19

DOCKET NO. 190301-5360
DATE: August 27, 2019

ORDER

Entitlement to service connection for chronic obstructive pulmonary disease is dismissed.

FINDING OF FACT

The Board was notified by VA that the Veteran died in July 2019.

CONCLUSION OF LAW

Due to the death of the Veteran, 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 March 2018. In February 2019, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2 (d)).

The Veteran served on active duty in the United States Navy from June 1977 to May 1981, with additional periods of reserve service thereafter. He selected the Direct Review lane without a Board hearing when he opted in to the Appeals Modernization Act (AMA) review system by submitting a VA Form 10182 (Decision Review Request: Board (Notice of Disagreement)).

Unfortunately, the Veteran died during the pendency of the appeal. VA received notification of his death in July 2019. 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 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.

(Continued on the next page)

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 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 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).

MARISSA CAYLOR

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. L. Burroughs, 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4449505. Public record. Not legal advice.