Citation Nr: 21011894
Decision Date: 03/03/21	Archive Date: 03/03/21

DOCKET NO. 18-17 275
DATE: March 3, 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 an open-angle glaucoma disability, to include as secondary to diabetes mellitus, type II is dismissed. 

Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II is dismissed.

FINDING OF FACT

On February 25, 2021, the Board was notified that the appellant died on February [REDACTED], 2021. 

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); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Air Force from November 1965 to March 1969.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).  The Board further notes that the Veteran was scheduled for a virtual Board hearing on February[REDACTED], 2021, but the hearing was postponed.

Unfortunately, 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 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.

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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).  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).

 

 

L.M. YASUI

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Xiong, 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.