Citation Nr: 18150479
Decision Date: 11/15/18	Archive Date: 11/15/18

DOCKET NO. 16-39 909
DATE:	November 15, 2018
ORDER
The issue of entitlement to service connection for bilateral hearing loss is dismissed.
The issue of entitlement to service connection for tinnitus is dismissed.
The issue of entitlement to service connection for a heart condition is dismissed.
The issue of entitlement to service connection for a kidney condition is dismissed. 
The issue of entitlement to service connection for diabetes mellitus is dismissed.
The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left shoulder condition is dismissed.
The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral foot condition is dismissed.
FINDING OF FACT
The Veteran died in September 2018, before a decision by the Board was promulgated on appeal.
CONCLUSION OF LAW
Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this claim at this time.  38 U.S.C. § 7104 (a) (2012); 38 C.F.R. § 20.1302 (2017); but see 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from May 1970 to January 1972.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied entitlement to service connection for diabetes, a heart condition, bilateral hearing loss, tinnitus, and a kidney condition and found that new and material evidence had not been received to reopen previously denied claims of entitlement to service connection for a left shoulder condition and a bilateral foot condition.  The Veteran timely perfected an appeal.  See August 2013 Notice of Disagreement; July 2016 Statement of the Case; August 2016 VA Form 9.
The issues of entitlement to service connection for a left shoulder condition and a bilateral foot condition were previously denied in an August 2008 rating decision.  The Board acknowledges that the RO implicitly reopened and adjudicated the issues on the merits in the July 2016 Statement of the Case.  Despite the determination reached by the RO, the Board must make its own determination as to whether new and material evidence has been received to reopen the Veteran’s claim with respect to these issues.  See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).
Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, Veterans’ 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.  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.  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; 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.  38 C.F.R. § 3.1010 (b)).
 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Kipper, Associate Counsel