Citation Nr: 1623618	
Decision Date: 06/14/16    Archive Date: 06/29/16

DOCKET NO.  12-24 046A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for plantar fasciitis of the right foot, to include as secondary to the service-connected plantar fasciitis of the left foot.

2. Entitlement to service connection for metastatic cancer of the lung.

3. Entitlement to service connection for metastatic cancer of the liver.

4. Whether new and material evidence has been received to reopen a claim for service connection for colon carcinoma, and if so, whether service connection is warranted.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs



WITNESS AT HEARING ON APPEAL

The Veteran's spouse


ATTORNEY FOR THE BOARD

S. Spitzer, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1977 to December 1981.

This appeal comes before the Board of Veterans' Appeals (Board) from October 2009 and February 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  The October 2009 rating decision, in pertinent part, denied the claim for service connection for plantar fasciitis of the right foot.  The Veteran subsequently perfected an appeal of that issue.  The February 2015 rating decision denied the claims for service connection for metastatic cancer of the lung and metastatic cancer of the liver, and reopened and denied the claim for service connection for colon carcinoma.  In August 2015, the Veteran filed a notice of disagreement (NOD) with that rating decision.  

In May 2016 the Veteran's spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

As discussed below, the Veteran passed away in November 2015.  In December 2015, the Veteran's spouse submitted a request for substitution in order to continue the appeal through her.  The RO has not had an opportunity to rule on this request, and the Board may not grant such a request in the first instance.  38 C.F.R. § 3.1010(e).  Accordingly, this matter is REFERRED to the RO for appropriate action.

FINDING OF FACT

In November 2015, while the Veteran's appeal to the Board was pending, and prior to the issuance of a final decision, the Veteran died.


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 (West 2014); 38 C.F.R. § 3.1010(b) (2015).  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 2014); see 38 C.F.R. § 3.1010(a) (2015).  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) (2015).  As noted above, the Board has herein referred a December 2015 request for substitution to the RO.


ORDER

The appeal is dismissed.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs