Citation Nr: 1311360	
Decision Date: 04/05/13    Archive Date: 04/19/13

DOCKET NO.  12-20 306	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

1. Entitlement to service connection for bronchitis.

2. Entitlement to service connection for peripheral neuropathy of the upper extremities including due to Agent Orange exposure.

3. Entitlement to service connection for peripheral neuropathy of the lower extremities including due to Agent Orange exposure.

4. Entitlement to service connection for bullous emphysema, claimed as collapsed lung, including due to Agent Orange exposure.

5. Entitlement to service connection for lung cancer, including due to Agent Orange exposure.




REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

William J. Jefferson III, Counsel


INTRODUCTION

The Veteran had active service from March 1969 to October 1972. 

This matter comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's claims initially included service connection for a right side lung mass, since recharacterized as service connection for lung cancer. 

In September 2012, the Veteran submitted additional pertinent evidence, and waived his right to have the RO initially consider it. 38 C.F.R. §20.1304 (c). 


FINDING OF FACT

A review of the Virtual VA Paperless claims processing system shows that in March 2013, VA was informed that the Veteran had died earlier that month.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of these claims. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2011); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran 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 Veteran 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 (2012). 

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 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). As provided for in this new provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ...." The Secretary will be issuing regulations governing the rules and procedures for substitution upon death. Until such regulations are issued, 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 RO in Oakland, California, from which the claim originated. 




ORDER


The appeal is dismissed.


____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs