Citation Nr: 1807201	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-38 267A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for lung cancer as a result of asbestos exposure.


REPRESENTATION

The Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. Foster, Associate Counsel


INTRODUCTION

The Veteran served in the Army from April 1960 to September 1960, from June 11, 1963 to June 16, 1963 and from September 10, 1963 to September 12, 1963, and in the Air Force from March 1961 to September 1961.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.


FINDING OF FACT

On December 18, 2017, the Board was notified by the RO that the Veteran died in January 2017.


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) (2012); 38 C.F.R. § 20.1302 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the 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 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 appellant.  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). 


ORDER

The appeal is dismissed.


		
E. I. VELEZ
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs