Citation Nr: 20054516
Decision Date: 08/18/20	Archive Date: 08/18/20

DOCKET NO. 17-24 140
DATE: August 18, 2020

ORDER

The appeal from the denial of the claim for an earlier effective date for the grant of service connection for adenocarcinoma of the prostate is dismissed without prejudice.

FINDING OF FACT

On July 16, 2020, the Board was notified that the appellant died 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 Veteran served on active duty from September 1968 to January 1972.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied an effective date prior to August 28, 2015 for the grant of service connection for adenocarcinoma of the prostate.

In February 2020, the Veteran testified before the undersigned Veterans Law Judge at a videoconference Board hearing.  A transcript of the hearing had not yet been associated with the claims file at the time of the Veteran's death.

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 emphasizes that the dismissal is without prejudice and 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.  For clarity, the claim that had been on appeal was for an effective date earlier than August 28, 2015 for the grant of service connection for adenocarcinoma of the prostate.

In a July 2020 letter, VA informed the appellant that it had denied her claim for accrued benefits because there was no claim pending at the time of death.  This is incorrect, however, because the claim being dismissed herein was pending at the time of the Veteran’s death.  Moreover, in lieu of a specific request to substitute, a claim for accrued benefits, survivors pension, or DIC by an eligible person in 38 C.F.R. § 3.1000(a)(1) to (5) is deemed to include a request to substitute if a claim for periodic monetary benefits is pending before the AOJ.  38 C.F.R. § 3.1010(c)(2).  Thus, there has been a request for substitution in this case, but the Board may not consider this request in the first instance.  Instead, it must be first adjudicated by the Agency of Original Jurisdiction.  38 C.F.R. § 3.1010(e).  If granted the appeal may be reactivated as appropriate, at which point it would resume its original place on the Board's docket.  38 C.F.R. § 20.1302.

 

 

Jonathan Hager

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. D. Simpson, 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.