Citation Nr: 18152143
Decision Date: 11/21/18	Archive Date: 11/21/18

DOCKET NO. 18-17 984
DATE:	November 21, 2018
ORDER
The appeal is dismissed.
FINDING OF FACT
In October 2018, the Board was notified that the Veteran died in September 2018, as confirmed by his death certificate.  
CONCLUSION OF LAW
Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active duty service from February 1969 to February 1971.  
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2017 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  
The Veteran died in September 2018 and his surviving spouse filed an Application for Dependency and Indemnity Compensation (DIC), Death Pension, and/or Accrued Benefits (VA Form 21-534EZ) in October 2018.  Such application is considered a request for substitution.  See 38 C.F.R. §3.1010(c)(2).  There is no indication that the Agency of Original Jurisdiction (AOJ) has made a specific determination regarding her request for substitution.  In this regard, the AOJ must provide written notification of its decision to either grant or deny a request for substitution to the person who filed the request, together with notice in accordance with 38 C.F.R. § 3.103(b)(1) in the first instance, including any request to substitute in an appeal that is pending before the Board.  38 C.F.R. § 3.1010(e).  Accordingly, the Board cannot adjudicate the surviving spouse’s request for substitution in the first instance.  Consequently, the Veteran’s appeal must be dismissed and his surviving spouse’s request for substitution is referred to the AOJ for appropriate action. 
1. Entitlement to service connection for lung cancer, claimed as due to exposure to herbicide agents. 
2. Entitlement to service connection for kidney failure (claimed as stage 4). 
3. Entitlement to a higher level of special monthly compensation. 
Unfortunately, the Veteran died during the pendency of the appeal.  Specifically, in October 2018, the Board was notified that he passed away in September 2018, as confirmed by his death certificate.  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.  
As noted previously, the Veteran’s surviving spouse has filed a request for substitution and the matter has been referred to the AOJ for appropriate action.  In this regard, the Board’s dismissal of the instant appeal does not affect her right to request to be substituted as the appellant for purposes of processing the claims to completion.  See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a), (b).  
 
A. JAEGER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Koria B. Stanton, Associate Counsel