Citation Nr: 21000676 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-60 873 DATE: January 5, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD) is dismissed. Service connection for emphysema is dismissed. Service connection for asthma is dismissed. FINDING OF FACT In December 2020, the Board was notified that the Veteran died in December 2020, during the pendency of this appeal. 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 FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1962 to October 1963. The Veteran died in December 2020. This matter comes on appeal from a June 2017 rating decision that reopened, but confirmed and continued, the previously denied claim of entitlement to service connection for a lung condition. The Veteran filed a notice of disagreement (NOD) in July 2017. The regional office (RO) issued a statement of the case (SOC) in September 2017. The Veteran appealed to the Board in November 2017. During the pendency of the Veteran’s appeal, the RO issued a rating decision in October 2018 that denied reopening the issue of service connection for a lung condition. Also during the pendency of the appeal, the RO issued a rating decision in September 2020 that granted service connection for recurrent bronchitis and recurrent pneumonia with bibasilar atelectasis and assigned a noncompensable rating, effective July 27, 2010. The Veteran appeared for a Board hearing before the undersigned Veterans Law Judge in April 2019. A transcript of the testimony is associated with the claims file. The Board remanded the claims in August 2019. By way of procedural history, in an August 2011 rating decision, the RO denied the Veteran’s original claim of service connection for a lung condition based on a finding that the Veteran’s current respiratory condition was not related to in-service pneumonia. While the Veteran did not submit a timely notice of disagreement, new and material evidence was received within the one-year appeal period. Accordingly, pursuant to 38 C.F.R. §3.156(b), the August 2011 rating decision remained pending because the new and material evidence that was added had not been considered in the August 2011 decision. In an October 2012 rating decision, the RO reopened the previously denied claim of service connection for a lung condition, but confirmed and continued the previous denial of service connection for a lung condition (claimed as COPD) because the additional evidence failed to show a nexus between the current respiratory condition and any in-service lung infection; the Veteran did not appeal that determination or submit new and material evidence within the one-year appeal period. However, as noted in the August 2019 Board remand, in January 2018, new, and relevant, service treatment records were associated with the claims file. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. §3.156(c)(1). Because the service treatment records added are relevant official service department records that existed and had not been associated with the claims file when VA initially decided the prior claims, the initial claim will be reconsidered without the need for new and material evidence. Dismissal 1. Entitlement to service connection for COPD. 2. Entitlement to service connection for emphysema. 3. Entitlement to service connection for asthma. 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. 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. (Continued on the next page)   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. 38 C.F.R. § 3.1010(b). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Modesto 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.