Citation Nr: 21010137
Decision Date: 02/24/21	Archive Date: 02/24/21

DOCKET NO. 18-43 077
DATE: February 24, 2021

ORDER

The appeal of entitlement to service connection for a prostate disorder, to include as secondary to service-connected disabilities and as due to herbicide agent exposure, is dismissed.

The appeal of entitlement to service connection for a stroke, to include as secondary to service-connected disabilities and as due to herbicide agent exposure, is dismissed.

FINDING OF FACT

On December 2, 2020, the Board of Veterans’ Appeals (Board) was notified that the Veteran died in November 2020.

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) (2012); 38 C.F.R. § 20.1302 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1969 to June 1970.

This appeal to the Board arose from a December 2015 rating decision issued by the Department of Veterans Affairs (VA).  See June 2016 Notice of Disagreement (NOD); July 2018 Statement of the Case (SOC); August 2018 Substantive Appeal (VA Form 9).

Unfortunately, the Veteran, who is 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.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

In reaching this determination, the Board provides 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.  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).  

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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).

 

 

ROBERT C. SCHARNBERGER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Lin

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.