Citation Nr: 21001555
Decision Date: 01/08/21	Archive Date: 01/08/21

DOCKET NO. 17-55 941A
DATE: January 8, 2021

ORDER

1. The appeal to reopen a claim of service connection for gastric carcinoma, to include as due to herbicide exposure is dismissed.

2. The appeal to reopen a claim of service connection for a bilateral hearing loss disability is dismissed.

3. The appeal seeking service connection for a prostate condition, to include as due to herbicide exposure is dismissed.

FINDING OF FACT

In January 2021, VA was notified that the Veteran died in December 2020.  

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate an appeal on the merits of these claims at this time.  38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant is a Veteran who served on honorable active duty from April 1970 to March 1972 and from March 1977 to February 1979 on duty from which he was separated under other than honorable conditions.  He died in December 2020.  These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision.

1. 2. 3. The appeal to reopen claims of service connection for gastric carcinoma, to include as due to herbicide exposure and seeking service connection for a bilateral hearing, and seeking service connection for a prostate disorder, to include as due to exposure to herbicide agents is dismissed.

Unfortunately, the Veteran 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).  These appeals on the merits 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 these appeals does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing these claims 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 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).

 

 

GEORGE R. SENYK

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	N. Staskowski, 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.