Citation Nr: 1454076	
Decision Date: 12/09/14    Archive Date: 12/16/14

DOCKET NO.  10- 29 788	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for bilateral lung pulmonary fibrosis, to include as due to exposure to herbicides.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

W.L. Puchnick, Counsel


INTRODUCTION

The Veteran (who is also the Appellant) served on active duty in the U.S. Army from October 1966 to October 1968.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  


FINDING OF FACT

On August 28, 2014, the Board received notification through a Social Security Administration (SSA) database that the Veteran had died in August 2014.


CONCLUSION OF LAW

Because of the Veteran's death, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2014); but see 38 U.S.C.A. § 5121A (West 2002 & Supp. 2014); 79 Fed. Reg. 52,977 (effective October 6, 2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran died during the pendency of this 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 therefore become moot by virtue of the Veteran's death and must be dismissed for lack of jurisdiction.  See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2014).

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.  See 38 C.F.R. § 20.1106 (effective October 6, 2014). 

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 this claim to completion.  This 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 2002 & Supp. 2014); 38 C.F.R. § 3.1010(b) (effective October 6, 2014).  

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 2002 & Supp. 2014); 38 C.F.R. § 3.1010(a) (effective October 6, 2014).  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).  See 38 C.F.R. § 3.1010(a) (effective October 6, 2014).  


ORDER

The appeal is dismissed.



____________________________________________
K.J. Alibrando
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs