13-15 358
13-15 358
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served on active duty from October 1961 to April 1965.
- In December 2010 the RO denied service connection for bilateral hearing loss and tinnitus; Veteran filed an NOD in February 2011 and perfected an appeal to the Board in May 2013.
- The Board remanded the claims for further development in February 2017.
- The Veteran died on September 13, 2017, while the appeal was pending; death was confirmed via VA FNOD and SSA inquiry.
- Because the appellant died before a Board decision, the Board concluded it lacked jurisdiction to decide the merits of the claimed benefits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to service connection for bilateral hearing loss | Veteran sought service connection for hearing loss based on service and evidence developed on remand | VA maintained the appeal should be decided on the merits (procedural posture prior to death) | Appeal dismissed as moot due to Veteran's death; Board lacks jurisdiction to adjudicate merits |
| Entitlement to service connection for tinnitus | Veteran sought service connection for tinnitus based on service and evidence developed on remand | VA maintained the appeal should be decided on the merits (procedural posture prior to death) | Appeal dismissed as moot due to Veteran's death; Board lacks jurisdiction to adjudicate merits |
Key Cases Cited
- Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir.) (appellants' claims do not survive death)
- Smith v. Brown, 10 Vet. App. 330 (Vet. App.) (claims become moot on veteran's death)
- Landicho v. Brown, 7 Vet. App. 42 (Vet. App.) (death of claimant removes Board jurisdiction)
Notes: The Board stated no opinion on the merits or on potential derivative survivor claims. Eligible survivors may request substitution within one year of the veteran's death under 38 U.S.C. § 5121A and 38 C.F.R. § 3.1010.