Citation Nr: 18120983
Decision Date: 07/24/18	Archive Date: 07/24/18

DOCKET NO. 15-27 509A
DATE:	July 24, 2018
ORDER
The Board decision addressing the issue of service connection for chronic obstructive pulmonary disease (COPD) with emphysema dated October 19, 2017 is vacated.
The appeal for service connection for (COPD) is dismissed.
FINDINGS OF FACT
1.  The Board issued a remand in this case on October 19, 2017.
2.  On October 25, 2017 a death certificate was received showing that the Veteran died on October [redacted], 2017.
CONCLUSIONS OF LAW
1.  The criteria for vacating the Board decision issued on October 19, 2017, that remanded the claim for service connection for COPD with emphysema have been met.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017).
2.  The criteria for dismissal of the appeal for entitlement to service connection for COPD with emphysema have been met.  38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.204, 20.1302 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from April 1952 to April 1956 and from January 1957 to January 1973.
This current appeal comes to the Board of Veterans’ Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.
The Veteran died on October [redacted], 2017.  
Order to Vacate
The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904 (2017).
In this case, the Veteran died four days prior to the Board issuing a remand for a VA examination.  The Veteran’s death preceded the Board decision, and as explained below a claim does not survive a claimant’s 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).  Because the claim does not survive the claimant’s death, the Board did not have jurisdiction and therefore must vacate its October 19, 2017 decision.
Dismissal
Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, claims do not survive a claimant’s death.  Zevalkink, 102 F.3d at 1243-44; Smith, 10 Vet. App. at 333-34; Landicho, 7 Vet. App. at 47.  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) (2012); 38 C.F.R. § 20.1302 (2017).
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 (2017). 
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.  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); see 38 C.F.R. § 3.1010 (a) (2017).  

 
J.W. FRANCIS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Harner, Associate Counsel