Citation Nr: 18159943
Decision Date: 12/21/18	Archive Date: 12/20/18

DOCKET NO. 16-19 622
DATE:	December 21, 2018
ORDER
Entitlement to an evaluation in excess of 60 percent for prostate cancer is dismissed.
Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed.
FINDINGS OF FACT
The record reflects that the Veteran died in October 2018 while his appeal was still pending before the Board.
CONCLUSIONS 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 FINDINGS AND CONCLUSIONS
The Veteran had active service from June 1965 to June 1968.

1. Entitlement to an evaluation in excess of 60 percent for prostate cancer
2. Entitlement to a TDIU

Unfortunately, the appellant died in October 2018 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.  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.  Such request must be filed not later than one year after the date of the appellant’s death.  See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b).  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 (listed on the first page of this decision).  38 C.F.R. § 3.1010(b).
 
Michael J. Skaltsounis
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Scott Shoreman, Counsel