Citation Nr: 21073392
Decision Date: 12/08/21	Archive Date: 12/08/21

DOCKET NO. 17-43 408
DATE: December 8, 2021

ORDER

The appeal is dismissed without prejudice.

FINDING OF FACT

Prior to promulgating a decision in this appeal, the Board has been notified of the Veteran's death on October 3, 2021.

CONCLUSION OF LAW

Due to the Veteran's death and no proper substitution at this time, the Board has no jurisdiction to adjudicate his appeal on its merits. 38 U.S.C. § 7104; 38 C.F.R. § 20.1302. 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran honorably served on active duty from August 1966 to March 1969. In a May 2016 rating decision, the Regional Office denied his request to reopen the previously decided claim for service connection for squamous cell carcinoma, right cervical lymph nodes, later claimed as laryngeal squamous cell cancer.  The Veteran appealed.  In November 2021, the Board was notified of the Veteran's death on October 3, 2021.

As a matter of law, the Veteran's claim does not survive his death, unless within one year from the date of death he is properly substituted for by an eligible individual who may be able to pursue his appeal on his behalf. 38 U.S.C. § 5121A. At this time, the record is devoid of any evidence reflecting that the substitution of the Veteran in this appeal has been filed. In this circumstance, any unadjudicated appeal pending at the time of the Veteran's death must be dismissed for lack of jurisdiction. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. 

In reaching its determination, the Board expresses no opinion as to the merits of this appeal or to any derivative claim that may be brought by a survivor of the Veteran. 38 C.F.R. § 20.1106. Upon proper substitution, the substituted appellant may continue the appeal on behalf of the diseased Veteran. 38 C.F.R. § 3.1010(a).  

At this time, absent proper substitution, the appeal is dismissed without prejudice.

 

 

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Alex Bardin, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.