Citation Nr: 1800393	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  13-05 440	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for an eye disability, to include nystagmus.


REPRESENTATION

Veteran represented by:  Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Gonzalez, Associate Counsel





INTRODUCTION

The Veteran served on active duty from February 1966 to February 1969, to include service in the Republic of Vietnam.
 
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision from the Department of Veterans (VA) Regional Office (RO) in Phoenix, Arizona.  

The Board notes that the September 2017 supplemental statement of the case includes the issue of entitlement to service connection for residuals, cancer of the back of the tongue, to include as a result of exposure to herbicide agents.  However, as this issue was denied by the Board in February 2017, the issue is not properly before the Board and will not be addressed.
 
In February 2017 the Board remanded the issue on appeal for additional development.  The issue has returned to the Board for appellate review.


FINDING OF FACT

On December 5, 2017 the Board was notified by the Department of Veterans Affairs (VA) Regional Office, Phoenix, Arizona, that the Veteran died earlier that month.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal at this time.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017). 




REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran 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 Veteran and must be dismissed for lack of jurisdiction.  See 38 U.S.C. § 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 (2017).  

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. § 5121A (2012); 38 C.F.R. § 3.1010(b) (2017).  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. § 5121A (2012); see 38 C.F.R. § 3.1010(a) (2017).  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) (2017). 


ORDER

The appeal is dismissed.


		
Nathan Kroes
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs