Citation Nr: 18158524
Decision Date: 12/17/18	Archive Date: 12/17/18

DOCKET NO. 15-21 257
DATE:	December 17, 2018
ORDER
Whether new and material evidence has been received to reopen service connection for a right shoulder disorder is dismissed.
Whether new and material evidence has been received to reopen service connection for a low back disorder is dismissed.
Service connection for a left foot disorder is dismissed.
Service connection for major depressive disorder is dismissed.
FINDING OF FACT
In November 2018, prior to promulgating a decision, the Board of Veterans’ Appeals (Board) was notified that the Veteran died in October 2018.
CONCLUSION OF LAW
Due to the Veteran’s death, the Board has no jurisdiction to adjudicate the merits of the issues on appeal at this time.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from April 1994 to April 1998.  This matter is on appeal from June 2013 (partially reconfirmed in July 2014) and August 2016 rating decisions of the Department of Veterans Affairs (VA). Although the Veteran requested a hearing before a Veterans Law Judge of the Board, none was held prior to his death in October 2018.  The Board recharacterizes the right shoulder and low back disorder appellate issues at this time from service connection to whether new and material evidence has been received to reopen service connection in light of an April 1998 rating decision addressing them.  
Unfortunately, as noted above, the Veteran/appellant 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 appellant’s death and must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a) (2012); 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.  38 C.F.R. § 20.1106 (2018).  
(Continued on the next page)
 
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.  Such request must be filed not later than one year after the date of the appellant’s death.  38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010(b) (2018).  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 (2012); 38 C.F.R. § 3.1010(a) (2018).  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 (here, the Seattle Regional Office).  38 C.F.R. § 3.1010(b) (2018).
 
THOMAS H. O'SHAY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Becker, Counsel