Citation Nr: 20005002
Decision Date: 01/23/20	Archive Date: 01/22/20

DOCKET NO. 19-07 186
DATE: January 23, 2020

ORDER

The request to reverse or revise the August 29, 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denying service connection for prostate cancer is dismissed.

The petition to reopen the claim of service connection for prostate cancer is dismissed.

Entitlement to service connection for erectile dysfunction to include as secondary to prostate cancer is dismissed.

Entitlement to service connection for incontinence to include as secondary to prostate cancer is dismissed.

FINDING OF FACT

In January 2020, prior to promulgating a decision, the Board of Veterans’ Appeals (Board) was notified that the Veteran died in November 2019.

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 FINDINGS AND CONCLUSIONS

The Veteran had active duty service from October 1967 to October 1971, to include service in the Republic of Vietnam and Thailand.

This matter comes before the Board on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.

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Unfortunately, the Veteran/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 the death of the Veteran and must be dismissed for lack of jurisdiction. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. 

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, in this case the Regional Office in Pittsburgh, Pennsylvania. 38 C.F.R. § 3.1010(b).

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.

 

 

Thomas H. O'Shay

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Dorsey-Kwansa, 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.