Citation Nr: 18152265
Decision Date: 11/21/18	Archive Date: 11/21/18

DOCKET NO. 15-46 954
DATE:	November 21, 2018
ORDER
The appeal pertaining to entitlement to a total disability rating due to individual unemployability due to service connected disabilities (TDIU) is dismissed.
FINDING OF FACT
On October 1, 2018, the Board was notified that the appellant died in September 2018.
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. § 7104(a); 38 C.F.R. § 20.1302.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Army from October 1982 to December 1985. 
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 appellant and must be dismissed for lack of jurisdiction.  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 acknowledges that 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).  However, the Agency of Original Jurisdiction (AOJ) has not yet made a substitution determination.  Pursuant to 38 C.F.R. § 3.1010(e)(1), 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), including any request to substitute in an appeal that is pending before the Board.  38 C.F.R. § 3.1010(e).  The Board cannot adjudicate the surviving spouse’s request for substitution in the first instance.  Consequently, the Veteran’s appeal must be dismissed.
 
A. ISHIZAWAR
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Lindsey Connor