Citation Nr: 20043336 Decision Date: 06/26/20 Archive Date: 06/26/20 DOCKET NO. 18-14 121A DATE: June 26, 2020 ORDER Entitlement to service connection for colon cancer for accrued benefits is dismissed. Entitlement to service connection for prostate cancer for accrued benefits is dismissed. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. FINDINGS OF FACT 1. The Veteran died in May 2016. 2. The agency of original jurisdiction (AOJ) has not yet made an initial determination as to whether the Veteran’s surviving spouse may be considered an eligible substitute in the Veteran’s appeal. CONCLUSIONS OF LAW 1. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claim for service connection for colon cancer at this time. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302. 2. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claim for service connection for prostate cancer at this time. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from August 1959 to August 1963. He died in May 2016, and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified before the undersigned Veterans Law Judge at a Travel Board hearing in March 2020. A transcript of the hearing is of record. Service Connection 1. Entitlement to service connection for colon cancer for accrued benefits 2. Entitlement to service connection for prostate cancer for accrued benefits The Veteran died in May 2016 while his claims for service connection for colon cancer and prostate cancer were pending. 38 U.S.C. § 5121A provides, in part, that if a claimant dies while a claim or appeal is pending, substitution of claimants is permitted. This section applies to pending claims or appeals in which the original claimant died on or after October 10, 2008, and a request to be substituted is received within one year of the claimant’s death. An eligible survivor may submit a substitution request by filing a VA Form 21-601 Application for Accrued Amounts Due a Deceased Beneficiary, VA Form 21-534, Application for DIC, Death Pension & Accrued Benefits by Spouse or Child; VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant; or through any other communication indicating a desire to substitute for a deceased claimant. Receipt of a VA Form 21-534 will be accepted as both a claim for accrued benefits and a substitution request. Unfortunately, the Veteran died during the pendency of his claim. 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). Therefore, the merits of the claims for service connection have 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); 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 Veteran for purposes of processing the claim to completion. Such request must be filed not later than one year after the date of the Veteran’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 (listed on the first page of this decision). 38 C.F.R. § 3.1010 (b). The AOJ has not yet made a formal determination as to whether the Veteran’s surviving spouse is an eligible substitute in this appeal. See 38 C.F.R. § 3.1010 (e) (stating that the “the agency of original jurisdiction will decide in the first instance all requests to substitute, including any request to substitute in an appeal pending before the Board of Veterans’ Appeals”) (emphasis added). Recognizing that the current appeal was pending before the Board at the time of the surviving spouse’s application, this appeal is dismissed without prejudice. If the AOJ determines that the surviving spouse is eligible to substitute for the deceased Veteran, the appeal will be reactivated as appropriate and will assume its original place on the Board’s docket. REASONS FOR REMAND 1. Entitlement to service connection for the cause of the Veteran's death is remanded. The appellant’s claim for service connection for the cause of the Veteran’s death is inextricably intertwined with the service connection claims addressed above. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the Board must defer adjudication of the cause of death claim until resolution of the matter of whether the appellant is a proper substitute for the Veteran in the claims for service connection for colon cancer and prostate cancer. This is so because additional development of the service connection claims may be necessary in the event that substitution is granted and the appeal as to those issues is reactivated. The matters are REMANDED for the following action: Following a determination as to whether the appellant is a proper substitute for the Veteran in the claims for entitlement to service connection for colon cancer and prostate cancer, readjudicate the inextricably intertwined issue of entitlement to service connection for the cause of the Veteran’s death. If necessary, return the case to the Board for further appellate review. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.