Citation Nr: 1614972	
Decision Date: 04/13/16    Archive Date: 04/26/16

DOCKET NO.  13-12 548	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for multiple myeloma, to include as secondary to exposure to Agent Orange.


REPRESENTATION

Appellant represented by:	AMVETS


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Mary E. Rude, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1969 to September 1993.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

In March 2014 the Veteran testified at a hearing before the undersigned.  A transcript of the hearing is of record.

The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS).

In August 2015 the Veteran's surviving spouse filed a claim of entitlement to dependency and indemnity compensation and to accrued benefits.  Service connection for the cause of the Veteran's death was denied in an October 2015 rating decision.  The decision did not address the surviving spouse's claim for accrued benefits, nor does it appear that she has been provided with notice regarding eligibility for substitution in a pending claim.  VA Fast Letter 10-30 (Aug. 10, 2010) states that receipt of VA Form 21-534 will be accepted as both a claim for accrued benefits and a substitution request.  The Board requests that the RO contact the surviving spouse and provide her with the appropriate notice relevant to this issue and to notify her of any substitution determination in a timely manner, and to then proceed with adjudication of the substation claim or claim for accrued benefits as indicated.  See 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010 (2015).


FINDING OF FACT

While the appeal was pending, and prior to the issuance of a final decision, VA received notice that the appellant had passed away on August [redacted], 2015.


CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2015).


REASONS AND BASES FOR FINDING 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 2014); 38 C.F.R. § 20.1302 (2015).

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 (2015).

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 38 U.S.C.A. § 5121A; 38 C.F.R. § 3.1010(b).  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; see 38 C.F.R. § 3.1010(a).  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).  38 C.F.R. § 3.1010(b).



ORDER

The appeal is dismissed.




		
BARBARA C. MORTON 
	Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs