Citation Nr: 20051003
Decision Date: 07/31/20	Archive Date: 07/31/20

DOCKET NO. 18-30 098
DATE: July 31, 2020

ORDER

The appeal for entitlement to service connection for prostate cancer is dismissed.

The appeal for entitlement to service connection for sleep apnea is dismissed.

FINDING OF FACT

In July 2020, VA received notification via the Social Security Administration that the Veteran passed away in June 2020.

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 Board is grateful the Veteran’s honorable service on active duty from October 1966 to October 1969. These matters come before the Board of Veterans’ Appeals (Board) from rating decisions in March 2017 and February 2018. The Veteran testified before the undersigned during a hearing in July 2019.  A transcript of the hearing is associated with the claims file. When this case was previously remanded by the Board in January 2020, the issues included service connection for bladder cancer.  However, an interim May 2020 rating decision granted service connection for bladder cancer.  Accordingly, this matter has been resolved and is no longer before the Board. 

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.  38 C.F.R. § 3.1010(b).

 

 

M. C. GRAHAM

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. Sowden, 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.