Citation Nr: 1237118	
Decision Date: 10/25/12    Archive Date: 11/09/12

DOCKET NO.  10-16 118	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York



THE ISSUE

Entitlement to service connection for squamous cell oropharyngeal cancer claimed as due to exposure to herbicides.



REPRESENTATION

Veteran represented by:	The American Legion



ATTORNEY FOR THE BOARD

Jebby Rasputnis, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 1968 to August 1971.

This matter was last before the Board of Veterans' Appeals (Board) in August 2011, on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction of the claims file subsequently transferred to the RO in New York. The Board denied the claim.

Prior to the issuance of the Board's decision, the Veteran died in July 2011. Subsequent to the issuance of the Board's decision, the Veteran's surviving spouse filed a Notice of Appeal with the United States Court of Appeals for Veterans Claims (Court). As the Veteran's surviving spouse did not seek substitution pursuant to 38 U.S.C.A. § 5121A, the Court determined that the matter was moot. In a July 2012 Order, the Court vacated the August 2011 Board decision and dismissed the appeal for lack of jurisdiction. The Court subsequently issued a Mandate, effective October 1, 2012, that the July 2012 Order was final and not subject to further review.


FINDING OF FACT

VA was informed by a November 2011 statement from the Veteran's authorized representative that he had died in July 2011; a death certificate was attached to the statement as verification of the reported death.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claim.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

As a matter of law, claims do not survive the deaths of the claimants. 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 has become moot by virtue of the death of the claimant and must be dismissed for lack of jurisdiction. See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2011). 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 (2011).

The Board's dismissal of an 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 (1) year after the date of the Veteran's death. See Veterans' Benefits Improvement Act of 2008, Pub.L.No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008). However, as the Veteran died in July 2011, the time period for filing such a request has concluded.


ORDER

The appeal as to entitlement to service connection for squamous cell oropharyngeal cancer claimed as due to exposure to herbicides, is dismissed.




____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs