Citation Nr: 18160235
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 16-55 750
DATE:	December 26, 2018
ORDER
The appeal of the claim for service connection for pancreatic cancer is dismissed.
The appeal of the claim for service connection for liver cancer is dismissed.
FINDING OF FACT
On March 20, 2014, the Agency of Original Jurisdiction was notified that the Veteran died in February 2014.
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 served on active duty from September 1964 to September 1966.  The Veteran died in February 2014.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision.
The Veteran filed a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, in February 2014 for service connection for pancreatic cancer and liver cancer.  Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, the Veteran’s claims for service connection do not survive his death.  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.  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 notes that the Veteran’s surviving spouse submitted a VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant, to the Agency of Original Jurisdiction in March 2014.  38 C.F.R. § 3.1010 states that subject to the provisions of § 20.1302, the Agency of Original Jurisdiction will decide in the first instance all requests to substitute.  However, the Agency of Original Jurisdiction has not made a determination concerning the request for substitution.  If the Agency of Original Jurisdiction grants the request to substitute, the case will assume its original place on the docket pursuant to Rule 900 (§20.900(a)(2)).  38 C.F.R. § 20.1302.  
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Further, the Board notes that the RO captioned the surviving spouse’s claim as one for accrued benefits under 38 U.S.C. § 5121.  While substitution under 38 U.S.C. § 5121A is a form of accrued benefits claim, it is potentially more favorable to the appellant because it allows her to continue to submit evidence in support of the appealed issues, whereas the evidence in an accrued benefits claim under 38 U.S.C. § 5121 is limited to evidence in the claims file as of the date of a Veteran's death.
 
P.M. DILORENZO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Mussey, Associate Counsel