Citation Nr: 1534532 Decision Date: 08/12/15 Archive Date: 08/20/15 DOCKET NO. 14-21 208 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for multiple myeloma. 2. Entitlement to service connection for AL amyloidosis. 3. Entitlement to service connection for a heart disability, claimed as ischemic heart disease (IHD). 4. Entitlement to service connection for lung cancer. 5. Entitlement to service connection for prostate cancer. 6. Entitlement to a rating higher than 10 percent for asbestosis. REPRESENTATION Veteran represented by: Karen Y. Vicks, Attorney at Law ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1951 to September 1977. He died in July 2015. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions in August 2011 and March 2013 of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had requested a hearing before a Veterans Law Judge, but he subsequently withdrew his hearing request, and it was deemed withdrawn. In May 2015, the Board promulgated a decision with regard to each of the issues on appeal. FINDINGS OF FACT 1. On May 1, 2015, the Board issued a decision denying service connection for multiple myeloma, AL amyloidosis, a heart disability claimed as IHD, lung cancer, and prostate cancer, and denying a rating higher than 10 percent for asbestosis; at the time of the decision, VA had not responded to a February 2014 request for a copy of the claims file to be sent to the Veteran's attorney. 2. In August 2015, the Board was notified that the Veteran had died in July 2015; a published account of the death in the local news has been acknowledged. CONCLUSIONS OF LAW 1. The May 1, 2015 Board decision addressing the issues of service connection for multiple myeloma, AL amyloidosis, a heart disability claimed as IHD, lung cancer, and prostate cancer, and entitlement to a rating higher than 10 percent for asbestosis is vacated. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015). 2. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claims of entitlement to service connection for multiple myeloma, AL amyloidosis, a heart disability claimed as IHD, lung cancer, and prostate cancer, and the merits of the claim of entitlement to a rating higher than 10 percent for asbestosis, at this time. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2015); but see 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015). Here, at the time of the Board's decision dated on May 1, 2015, the Veteran had a pending request for a copy of his claims file, which had not been addressed by VA (either the RO or the Board). That is, the record shows that in a February 2014 statement the Veteran's representative attorney specifically requested a copy of the Veteran's claims file, but she never received a response to the request. Recently, in a July 2015 statement in which the Veteran's attorney filed a Motion for Reconsideration of the Board's May 2015 decision, she asserted that the Veteran's claims file had been requested several times but never received. Therefore, in acknowledgement that due process was not accorded to the Veteran at the time of the May 1, 2015 decision, the Board has decided to vacate the decision in its entirety with regard to the above-listed six issues. Under 38 U.S.C.A. § 7252, only a final decision of the Board is appealable to the United States Court of Appeals for Veterans Claims (Court). This vacatur is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b). The issues are disposed of as set forth below. Dismissal The Board was notified in August 2015 that the Veteran had died in July 2015. The account of his death is confirmed in an online local news obituary entry. As there is no evidence to the contrary, the Board accepts the news account as proof of the Veteran's death during the pendency of the appeal of the claims of service connection for multiple myeloma, AL amyloidosis, a heart disability claimed as IHD, lung cancer, and prostate cancer, and the claim for a rating higher than 10 percent for asbestosis. 38 C.F.R. § 3.211(f). As the Veteran died during the pendency of his appeal, as a matter of law the appeal does not survive his death, and the appeal of the claims must be dismissed for lack of jurisdiction. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2015); 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). In reaching this determination, the Board intimates no opinion as to the merits of the appeal or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106 (2015). 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 Veteran 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. See 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010(b) (2015). 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.A. § 5121A (West 2014); 38 C.F.R. § 3.1010(a) (2015). 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) (2015). ORDER The Board's May 1, 2015 decision is vacated. The appeal seeking service connection for multiple myeloma is dismissed. The appeal seeking service connection for AL amyloidosis is dismissed. The appeal seeking service connection for a heart disability, claimed as ischemic heart disease, is dismissed. The appeal seeking service connection for lung cancer is dismissed. The appeal seeking service connection for prostate cancer is dismissed. The appeal seeking a rating higher than 10 percent for asbestosis is dismissed. M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs