Citation Nr: 21011917
Decision Date: 03/03/21	Archive Date: 03/03/21

DOCKET NO. 19-07 217
DATE: March 3, 2021

ORDER

Entitlement to service connection for lung cancer is dismissed.

FINDING OF FACT

On February 16, 2021, the Department of Veterans Affairs (VA) was notified that the Veteran had died.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board of Veterans’ Appeals (Board) has no jurisdiction at this time to adjudicate the issue of entitlement to service connection for lung cancer.  38 U.S.C. § 7104; 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from April 1971 to May 1982, from December 1986 to December 1989, and from October 2004 to April 2007.  This case comes before the Board on appeal from a rating decision of October 2017 issued by the VA Regional Office (RO) in Columbia, South Carolina. 

Unfortunately, the record reflects that the Veteran subsequently died during the pendency of the appeal.  See February 2021 Notification Letter; see also February 2021 Social Security Agency Report.  As a matter of law, appellants’ claims do not survive their deaths.  See Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); see also Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); see also Landicho v. Brown, 7 Vet. App. 42, 47 (1994).  This appeal has therefore become moot as a result of the Veteran’s death and must be dismissed for lack of jurisdiction.  See 38 U.S.C. § 7104; see also 38 C.F.R. § 20.1302.

In reaching this conclusion, the Board makes no determinations as to the merits of the Veteran’s appeal or to those of any derivative claim brought by a survivor of the Veteran.  See 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 a request must be filed not later than one year after the date of the Veteran’s death.  See 38 U.S.C. § 5121A; see also 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.”  See id.; see also 38 C.F.R. § 3.1010(a).  An eligible person seeking substitution in an appeal that has been dismissed by the Board due to the death of the Veteran should file a request for substitution with the VA office from which the claim originated (listed on the first page of this decision).  Id.

 

 

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Blore, 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.