Citation Nr: 19118317
Decision Date: 03/14/19	Archive Date: 03/13/19

DOCKET NO. 17-33 991
DATE:	March 14, 2019

ORDER

Entitlement to service connection for chronic arthritis of hands and back is dismissed.

Entitlement to service connection for erectile dysfunction (claimed as ED secondary to diabetes or prostate cancer) is dismissed.

Entitlement to service connection for prostate cancer (exposed to chemical warfare in WWII) is dismissed.

Entitlement to service connection for scar on left leg due to shrapnel is dismissed.

Entitlement to service connection for diabetes mellitus, type II (exposed to chemical warfare in WWII) is dismissed.

Entitlement to service connection for peripheral neuropathy, right lower extremity (claimed as PN of legs and feet secondary to diabetes) as secondary to diabetes mellitus, type II (exposed to chemical warfare in WWII) is dismissed.

Entitlement to service connection for peripheral neuropathy, left lower extremity (claimed as PN of legs and feet secondary to diabetes) as secondary to diabetes mellitus, type II (exposed to chemical warfare in WWII) is dismissed.

Entitlement to service connection for Parkinson’s disease (exposed to chemical warfare in WWII) is dismissed.

FINDING OF FACT

Prior to issuing a decision on the merits of the Veteran’s claims on appeal, the Board received notice in October 2018 that the Veteran had died in October 2018, during the pendency of this appeal.

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 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service in the United States Army from July 1943 to February 1976. 

This case comes before the Board of Veteran’s Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran died during the pendency of the appeal. As a matter of law, appellants’ claims do not survive their deaths. See 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). By virtue of the death of the appellant, this appeal must be dismissed for lack of jurisdiction. See 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 these appeals or to any derivative claim brought by a survivor of the Veteran. See 38 C.F.R. § 20.1106 (2018).

The Board’s dismissal of these appeals does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claims 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 (2012); 38 C.F.R. § 3.1010 (b) (2017). 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) (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 (listed on the first page of this decision). See 38 C.F.R. § 3.1010 (b) (2018). 

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	S. Baxter, Associate Counsel