Citation Nr: 21011392 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-19 262 DATE: March 1, 2021 ORDER Entitlement to service connection for diabetes mellitus, Type II, to include as due to herbicide agent exposure, is dismissed. Entitlement to service connection for ischemic heart disease, to include as due to herbicide agent exposure, is dismissed. Entitlement to service connection for lung cancer, to include as due to herbicide agent exposure, is dismissed. FINDING OF FACT In January 2021, the Board was notified by the Department of Veterans Affairs (VA) Regional Office, that the appellant died in January 2021. CONCLUSION OF LAW Due to the death of the Veteran, 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 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1970 to October 1971, which was honorable for VA purposes, and from June 1973 to June 1974 which was not honorable for VA purposes. These matters were previously before the Board of Veterans’ Appeals (Board) from separate rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The May 2015 rating decision pertained to service connection for diabetes mellitus and ischemic heart disease. The April 2016 rating decision pertained to lung cancer. Most recently, in December 2019 decision, the Board denied service connection for diabetes mellitus, Type II, ischemic heart disease, and lung cancer. The Veteran appealed that decision to the United States Court of Veterans Claims (CAVC). In an October 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the portion of the December 2019 decision that denied the Veteran’s diabetes mellitus, Type II, ischemic heart disease, and lung cancer claims, remanding the matters to the Board for further proceedings consistent with the JMPR. Unfortunately, the Veteran died during the pendency of the appeal. In January 2021, the Board was notified that the Veteran had died in January 2021 (1/25/2021 VA 21-4138 Statement In Support of Claim). 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. See 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017). Although the Veteran’s spouse has applied for substitution, no determination on that application is of record (1/27/2021 VA 21-0847 - Request for Substitution of Claimant Upon Death of Claimant). 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 appellant’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. 38 C.F.R. § 3.1010(b). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.