Citation Nr: 18157000
Decision Date: 12/11/18	Archive Date: 12/11/18

DOCKET NO. 13-35 598
DATE:	December 11, 2018
ORDER
The claims for entitlement to service connection for left rotator cuff injury, right rotator cuff injury, hypertension, cirrhosis of the liver, renal cysts and drug abuse are dismissed.
FINDING OF FACT
On October 5, 2018, the VA has received notification that the Veteran died during the pendency of this appeal.
CONCLUSION OF LAW
Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claims at this time. 38 U.S.C. § 7104 (a) (West 2002); 38 C.F.R. § 20.1302 (2018); but see Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). 



REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from December 1965 to October 1967.
This matter comes before the Board from a September 2012 rating decision which denied these issues on appeal.  He filed a notice of disagreement (NOD) in October 2012, a Statement of the Case (SOC) was issued in September 2013 and the appeal was perfected in September 2013.  The Veteran testified before the undersigned at a Board hearing held in March 2015.  
The Board remanded this matter in June 2015 for further development.  
The Board notes that an issue of entitlement to nonservice connected (NSC) pension was denied by the RO in September 2012 and an NOD was filed in October 2012.  This matter was remanded by the Board in March 2015 for the RO to issue a SOC.  The RO issued a SOC addressing the NSC issue in November 2016; the appeal was perfected by submission of a VA Form I-9 in January 2017.  While this appeal was pending the RO in a December 2017 rating granted entitlement to pension benefits extending to the date of claim, with entitlement to both pension and compensation benefits and payment of compensation as the greater benefit from April 1, 2012 to May 1, 2013 and from April 1, 2017 to December 1, 2017, thereby rendering this matter moot and removing this matter from appellate consideration. 
The Board notes that appeals were initiated in response to ratings that are not ripe for appellate review, with a notice of disagreement (NOD) filed in December 2017 contesting a November 2017 denial of service connection for a lung disorder, diabetic neuropathy of the left lower extremity, diabetic neuropathy of the right lower extremity, a bladder disorder with mass and bleeding and rectal proctitis.  Later in June 2018, the Veteran filed a NOD initiating appeal with the initial ratings assigned for grants of service connection for diabetes mellitus, PTSD, peripheral vascular disease, peripheral neuropathy of the left and right lower extremities, per a December 2017 rating.  As RO development appeared to be ongoing and no statement of the case was issued regarding these matters prior to the Veteran’s death, they are not ripe for Board review and are not part of this current appeal.  
During the pendency of this appeal the Veteran died in September 2018 and the RO received first notice of his death on October 5, 2018.  
On October 9, 2018, the Veteran’s widow was sent a correspondence advising her of her potential eligibility to be a substitute claimant.  
On October 16, 2018, an individual identifying herself as the Veteran’s widow submitted a request for substitution of claimant.  See 38 C.F.R. § 3.1010 (c)(2) (2018). However, the Agency of Original Jurisdiction (AOJ) has not made a specific determination regarding her request for substitution in regard to the appeal herein. The AOJ must provide written notification of the granting or denial of a request to substitute 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 pending before the Board of Veterans’ Appeals. 38 C.F.R. § 3.1010 (e). Accordingly, the Board cannot rule on the Veteran’s surviving spouse’s request for substitution in the first instance, and the appeal must be dismissed; the request is referred to the AOJ for appropriate action.
With respect to the active appellate issues for entitlement to service connection for left rotator cuff injury, right rotator cuff injury, hypertension, cirrhosis of the liver, renal cysts and drug abuse, unfortunately as noted above, 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) (West 2002); 38 C.F.R. § 20.1302 (2018).
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 in regard to the remaining issues that were not withdrawn at the time of his death. 38 C.F.R. § 20.1106. 
 
 
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Eckart, Counsel