Citation Nr: 19165167 Decision Date: 08/23/19 Archive Date: 08/21/19 DOCKET NO. 13-11 962 DATE: August 23, 2019 ORDER Entitlement to service connection for status post hemithyroidectomy, to include as due to ionizing radiation, is dismissed due to the Veteran’s death. Entitlement to service connection for a temporary total evaluation as due to status post hemithyroidectomy is dismissed due to the Veteran’s death. FINDING OF FACT The Veteran died on October [Redacted], 2018. CONCLUSION OF LAW Because the Veteran has died, and there is no substituted appellant for this appeal, the Board has no jurisdiction to adjudicate the merits of the claims. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2018); but see 38 U.S.C. § 5121A (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran’s claim was pending before the Board of Veterans’ Appeals (Board) at the time of his death, having been certified on November 29, 2017. A pending claim is any claim which has not been completely adjudicated at the time of death. 38 C.F.R. § 3.160. 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). The Veteran died during the pendency of the appeal. Therefore, his appeal has been rendered moot by virtue of his death, and it must be dismissed for lack of jurisdiction. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. When a claimant with an appeal pending before the Board dies and there has been no motion to substitute and there is no pending claim for accrued benefits, survivors pension, or dependency indemnity compensation (DIC) before the Board, the Board must dismiss the appeal without prejudice. 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. In particular, this dismissal 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. Substitution is when an eligible claimant steps into the shoes of a deceased claimant and picks up a pending claim or appeal where it was at the time of the deceased claimant’s death for the purposes of processing the claim to completion. 38 U.S.C. § 5121A; 38 C.F.R. §§ 3.1010. Since the determination of whether someone is an eligible substitute is an issue that can be appealed to the Board, the Agency of Original Jurisdiction (AOJ) must make the initial substitution eligibility determination and must provide written notice to the appellant of that decision. 38 C.F.R. § 3.1010(e); see 38 C.F.R. § 3.103(b), (f) (emphasis added). The Board cannot make the initial determination as to whether someone is an eligible substitute. See 38 C.F.R. § 20.101(a) (providing that “[a]ll questions in a matter which... is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board.”). A person eligible for substitution may file with the AOJ a request to substitute for the deceased appellant. 38 C.F.R. § 20.1302(a). 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; 38 C.F.R. § 3.1010(a). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.