Citation Nr: 21071792
Decision Date: 12/01/21	Archive Date: 12/01/21

DOCKET NO. 18-21 386
DATE: December 1, 2021

ORDER

Entitlement to service connection for breast cancer is dismissed.

Entitlement to service connection for lung cancer is dismissed.

FINDING OF FACT

The Veteran died in September 2021 while pursuing claims for service connection for breast and lung cancer. 

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 in the Air Force with active duty service from October 1978 to December 1985. 

These matters come to the Board of Veterans' Appeals (Board) from a January 2018 rating decision issued by the Agency of Original Jurisdiction (AOJ). In July 2021, a Board hearing was conducted. The hearing transcript has been associated with the Veteran's file. 

Unfortunately, the Veteran died in September 2021, 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 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.

Although the Veteran's daughter has filed a timely claim for substitution, the AOJ has not yet decided on the claimant's eligibility for substitution. See September 2021 VA Form 21-0847. Because the AOJ must make the initial eligibility determination, the Board does not have jurisdiction over the claim at this time. 38 C.F.R. § 3.1010(e). Accordingly, the Board must dismiss the matter on appeal for lack of jurisdiction and allow the AOJ to decide the matter in the first instance. The Board notes if a substitution determination is made in the future, the appeal will assume its original place on the Board's docket. 38 C.F.R. § 20.1302.

Finally, the Board extends its sincerest condolences to the surviving loved ones for 

 

their loss, as well as its highest appreciation to the late Veteran for her honorable service in the Air Force.

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Dean, Michael S.

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.