Citation Nr: 1327030	
Decision Date: 08/23/13    Archive Date: 08/29/13

DOCKET NO.  11-25 132	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1. Service connection for diabetes mellitus, type II as a result of herbicide exposure.

2. Service connection for hyperlipidemia as a result of herbicide exposure.

3. Service connection for erectile dysfunction as a result of herbicide exposure.

4. Service connection for prostate cancer as a result of herbicide exposure.

5. Service connection for peripheral neuropathy, right upper extremity as a result of herbicide exposure.

6. Service connection for peripheral neuropathy left upper extremity as a result of herbicide exposure.

7.  Service connection for peripheral neuropathy, right lower extremity as a result of herbicide exposure.

8. Service connection for peripheral neuropathy, left lower extremity is denied.

9. Service connection for hypertension as a result of herbicide exposure.

10. Service connection for heart disease as a result of herbicide exposure.

11. Service connection for bladder leakage as a result of herbicide exposure.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

S. Grabia, Counsel



INTRODUCTION

The Veteran service on active duty from May 1965 to May 1969.

This matter comes to the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a) (2) (West 2002).



FINDINGS OF FACT

1. In August 2013, prior to promulgation of a decision, the VA received notice that the Veteran had died.

2. At the time of his death, the Veteran had claims for entitlement to service connection for diabetes mellitus, type II; hyperlipidemia; erectile dysfunction; prostate cancer; peripheral neuropathy, right and left upper and lower extremities; hypertension; heart disease; and, bladder leakage as a result of herbicide exposure, all pending before the Board.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claims at this time. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Unfortunately, the appellant 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 appellant and must be dismissed for lack of jurisdiction.  See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012).

In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claims 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 regional office (RO) from which the claim originated (listed on the first page of this decision). 


ORDER

The appeal is dismissed.


____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs