Citation Nr: 1800755 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 17-17 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for skin cancer, to include as due to Camp Lejeune Contaminated Water (CLCW) exposure. 2. Entitlement to service connection for eye cancer, to include as secondary to skin cancer due to CLCW exposure. 3. Entitlement to service connection for sinus cancer, to include as secondary to skin cancer due to CLCW exposure. 4. Entitlement to service connection for tremors (neurobehavioral, including Parkinson's syndrome), to include as due to CLCW exposure. 5. Entitlement to service connection for Meniere's disease, to include as secondary to service-connected bilateral hearing loss. 6. Entitlement to an initial compensable rating for ruptured right ear drum. REPRESENTATION Veteran represented by: Robert Brown, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel INTRODUCTION The Veteran served in the United States Marine Corps from January 1953 to January 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal of September 2015 and September 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In the September 2015 decision, the RO denied the Veteran's service connection claims, to which the Veteran submitted a timely appeal. In the September 2016 decision, the RO granted service connection for ruptured eardrum of the right ear at a noncompensable rating, effective May 18, 2012. The Veteran disagreed with the evaluation and perfected his appeal. The Veteran provided testimony before a Veterans Law Judge (VLJ) other than the undersigned at a videoconference hearing in November 2017. A transcript of the hearing has been associated with the claims folder. Although a VLJ who conducts a hearing must participate in making the final determination of the claims involved, because the Board is not adjudicating the merits of the claims on appeal, there is no error or prejudice. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2017). In November 2017, an application for burial benefits was submitted by the funeral home handling the Veteran's burial services. The claims file does not yet reflect that the RO has acknowledged the application. This is unsurprising, given the very short lapse in time. In order to afford the RO the opportunity to undertake any development necessary, the Board will not refer the issue to the RO at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT In November 2017, the Board received verification that the Veteran died November 9, 2017. CONCLUSIONS OF LAW 1. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal of entitlement to service connection for skin cancer, to include as due to CLCW exposure, at this time. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017); see also Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). 2. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal of entitlement to service connection for eye cancer, to include as secondary to skin cancer, at this time. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; see also Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). 3. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal of entitlement to service connection for sinus cancer, to include as secondary to skin cancer, at this time. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; see also Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). 4. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal of entitlement to service connection for tremors (neurobehavioral, including Parkinson's syndrome), to include as due to CLCW exposure at this time. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; see also Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). 5. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal of entitlement to service connection for Meniere's disease, to include as secondary to service-connected bilateral hearing loss, at this time. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; see also Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). 6. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal of entitlement to an initial compensable rating for ruptured right ear drum at this time. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; see also Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). REASONS AND BASES FOR FINDING AND CONCLUSIONS Unfortunately, in November 2017, the Board received a death certificate indicating that the Veteran died earlier that month, which was 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.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 (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 claims to completion. Such request must be filed not later than one year after the date of the Veteran'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 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 VA RO from which the claim originated (listed on the first page of this decision). ORDER The appeal of entitlement to service connection for skin cancer, to include as due to CLCW exposure, is dismissed. The appeal of entitlement to service connection for eye cancer, to include as secondary to skin cancer due to CLCW exposure, is dismissed. The appeal of entitlement to service connection for sinus cancer, to include as secondary to skin cancer due to CLCW exposure, is dismissed. The appeal of entitlement to service connection for tremors (neurobehavioral, including Parkinson's syndrome), to include as due to CLCW exposure, is dismissed. The appeal of entitlement to service connection for Meniere's disease, to include as secondary to service-connected bilateral hearing loss, is dismissed. The appeal of entitlement to an initial compensable rating for ruptured right ear drum is dismissed. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs