Citation Nr: A21016387
Decision Date: 10/05/21	Archive Date: 10/05/21

DOCKET NO. 200701-86044
DATE: October 5, 2021

ORDER

The appeal for service connection for pancreatic cancer is dismissed.

FINDING OF FACT

On April 27, 2021 the Board was notified that the appellant died in April 2021.

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 March 1967 to November 1969. 

This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2019 Department of Veterans Affairs (VA) Regional Office (RO) rating decision.  In that rating decision, the RO confirmed a prior denial of entitlement to service connection for pancreatic cancer because the evidence submitted was not new and relevant.

The Veteran's notice of disagreement, VA Form 10182, was received in July 2020.  

Unfortunately, the appellant died during the pendency of this appeal.  Specifically, as indicated above, VA was notified that he died in April 2021, as verified by the Social Security Administration (SSA).  

In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted as proof of death.  38 C.F.R. § 3.211(g).

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 Veteran 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.

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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).

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. Ardalan, 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.