Citation Nr: 1331425	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  10-38 436	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska



THE ISSUE

Entitlement to service connection for colon cancer, status post hemicolectomy, to include as due to exposure to herbicides.  



REPRESENTATION

Appellant represented by:	Disabled American Veterans




ATTORNEY FOR THE BOARD

D. M. Casula, Counsel

INTRODUCTION

The Veteran had active service from March 1969 to March 1973. 

This matter comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to service connection for colon cancer, status post right hemicolectomy. 


FINDING OF FACT

In September 2013, the Board received notice from the Social Security Administration (SSA) that the Veteran died on September [redacted], 2013.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this claim at this time.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2009). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran initiated an appeal of a December 2009 rating decision that denied the issue of service connection for colon cancer, status post hemicolectomy, to include as due to exposure to herbicides.  Unfortunately, the Veteran died during the pendency of the appeal.  The SSA reports that he died on September [redacted], 2013.  An obituary issued from Curran Funeral Chapel corroborates this finding.


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); 38 C.F.R. § 20.1302. 

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. 

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 RO from which the claim originated (listed on the first page of this decision). 


ORDER

The appeal is dismissed.


______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs