Citation Nr: 20022412
Decision Date: 03/31/20	Archive Date: 03/31/20

DOCKET NO. 15-04 536
DATE: March 31, 2020

ORDER

The claim of entitlement to service connection for lung cancer is dismissed.

FINDING OF FACT

On September 6, 2016, the Board was notified that the appellant died in August 2016.

CONCLUSION OF LAW

Due to the death of the appellant, 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 FINDING AND CONCLUSION

The Veteran served on active duty from October 1960 to October 1964.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The appellant died in August 2016. The record reflects that VA received in November 2016 the appellant’s surviving spouse’s request to substitute herself as claimant in the appeal initiated by the appellant. The written request was submitted within three months of the Veteran’s death, indicated the intent to substitute, provided the claimant’s claim number and Social Security number, and provided the names of the deceased claimant and person requesting substitution. See 38 C.F.R. § 3.1010(b)-(c). Additionally, a marriage certificate submitted in November 2016 reflects that the claimant and the appellant were married. See 38 C.F.R. § 3.1010(d). However, there is no indication that the Agency of Original Jurisdiction (AOJ) adjudicated the request as yet. See 38 C.F.R. § 3.1010(e). 

The claim of entitlement to service connection for lung cancer is dismissed.

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.  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 Veteran.  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.  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).  

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).

 

 

C.A. SKOW

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	E. M. Pesin

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.