Citation Nr: 21015116
Decision Date: 03/16/21	Archive Date: 03/16/21

DOCKET NO. 19-28 974
DATE: March 16, 2021

ORDER

Entitlement to service connection for chronic lymphocytic leukemia, to include as due to herbicide agent exposure is dismissed.

FINDING OF FACT

Before the promulgation of the appeal, on February 3, 2021, VA was notified that the Veteran 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. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served honorably on active duty in the United States Air Force from January 1967 to January 1971.  The Veteran was awarded, among other decorations, the Vietnam Service Medal and the National Defense Service Medal.  

This matter comes before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

Entitlement to service connection for chronic lymphocytic leukemia, to include as due to herbicide agent exposure.

Unfortunately, the Veteran died in January 2021 during the pendency of the appeal.

The Board recognizes that the Veteran’s surviving spouse submitted a request to be substituted as the appellant for purposes of processing the claim to completion in February 2021.  Subsequently, in February 2021, VA notified the Veteran’s surviving spouse to provide information regarding whether she was married to the Veteran at the time of his death.  As of this date, the Veteran’s surviving spouse did not respond.  There has not been a substitution determination made by the agency of original jurisdiction (AOJ) at this time.  The AOJ must make the initial substitution eligibility determination and notify the appellant of that decision before the Board can adjudicate the claim.  38 C.F.R. § 3.1010(e). 

The Board sincerely regrets further delay, but it is bound by the law that prohibits making an initial determination of eligibility of substitution.  

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. § 7105; 38 C.F.R. § 19.55.

The Board does not have jurisdiction to adjudicate the merits of the claim currently.  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.  Assuming the AOJ finds the surviving spouse a proper substitute in its substitution determination, the appeal may return to the Board for adjudication.

Because the Board does not have jurisdiction to make such a determination, however, the appeal must be dismissed at this time.

 

 

Evan M. Deichert

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Crawford, 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.