Citation Nr: 21004973 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 08-38 354 DATE: January 28, 2021 ORDER The claim of entitlement to service connection for gastrointestinal cancer, to include as due to herbicide and/or radiation exposure, for substitution purposes, is dismissed. The claim of entitlement to service connection for a kidney disorder, to include as due to herbicide and/or radiation exposure, for substitution purposes, is dismissed. FINDING OF FACT In January 2021, VA was notified that the appellant died in January 2019. 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 had active military service in the U.S. Army from September 1967 to September 1970. During this time, he served in the Republic of Vietnam. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia which, in part, found that the Veteran had failed to submit new and material evidence to reopen a previously denied claim of entitlement to service connection for gastrointestinal cancer and denied service connection for a kidney disorder. In July 2012, the Veteran presented testimony at a Travel Board hearing before a Veterans Law Judge. In August 2012, the Board reopened a previously denied claim of entitlement to service connection for gastrointestinal cancer based on the submission of new and material evidence and remanded the issues for additional development. The Veteran died in May 2015. In December 2018, the Board dismissed the appeal and, that same day, the Veteran’s widow was substituted as the appellant for purposes of processing claims on appeal at the time of the Veteran’s death.  See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010; see also 79 Fed. Reg. 52977-85 (Sept. 5, 2014). Notably, following the Veteran’s death, the appellant submitted a claim for service connection for the cause of the Veteran’s death and perfected an appeal of this issue following a February 2016 rating decision. This issue was awaiting the scheduling of a hearing at the time of the appellant’s death, has been docketed separately, and will be the subject of a separate decision. The claims of entitlement to service connection for gastrointestinal cancer and a kidney disorder, to include as due to herbicide and/or radiation exposure, for substitution purposes, are dismissed. 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. 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 (listed on the first page of this decision). 38 C.F.R. § 3.1010(b). Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.