Citation Nr: 21011880
Decision Date: 03/02/21	Archive Date: 03/02/21

DOCKET NO. 19-28 103
DATE: March 2, 2021

ORDER

The appeal with respect to entitlement to service connection for heart disease (claimed as coronary artery disease and ischemic heart disease) is dismissed.

The appeal with respect to entitlement to service connection for diabetes mellitus, type II, is dismissed. 

The appeal with respect to entitlement to service connection for residuals of partial prostate removal is dismissed.

The appeal with respect to entitlement to service connection for skin cancer is dismissed. 

The appeal with respect to entitlement to service connection for peripheral neuropathy of the lower extremities is dismissed. 

FINDING OF FACT

The Veteran died in January 2021, while the current appeal was pending.

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); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from September 1968 to September 1971, to include service in Korea. 

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. 

Dismissal

Unfortunately, the Veteran died in January 2021, while the current appeal was pending. 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. 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 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. 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). 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).

In this regard, the Board notes that a request for substitution was recently filed; however, the agency of original jurisdiction has not yet acted upon that request.  See 38 C.F.R. § 3.1010(e). Absent such action, the Board does not have jurisdiction to further consider the merits of the appeal at the present time.  

 

DAVID A. BRENNINGMEYER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	F. Lanton, 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.