Citation Nr: 21011125
Decision Date: 03/01/21	Archive Date: 03/01/21

DOCKET NO. 17-23 030
DATE: March 1, 2021

ORDER

Entitlement to service connection for a right eye tumor, to include as secondary to herbicide exposure, is dismissed.

Entitlement to service connection for erectile dysfunction, as secondary to prostate cancer, is dismissed.

FINDINGS OF FACT

In January 2021, the Board was notified that the Veteran died in December 2020. 

CONCLUSIONS OF LAW

Due to the death of the appellant, and the lack of an order granting substitution, the Board has no jurisdiction to adjudicate the merits of the claims at this time. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1968 through June 1970. The Veteran died in December 2020.

This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

Dismissal

Unfortunately, the appellant died during the pendency of the appeal. As a matter of law, veterans’ 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 Veteran’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	N.B. Mmeje, 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.