Citation Nr: 21023692
Decision Date: 04/21/21	Archive Date: 04/21/21

DOCKET NO. 19-04 064
DATE: April 21, 2021

ORDER

1. The claim for entitlement to service connection for a left foot fungus, claimed as a left big toe disability status post-surgery, to include due to Gulf War environmental hazards, is dismissed.

2. The claim for entitlement to service connection for pancreatitis, to include as secondary to gastroesophageal reflux disease, is dismissed.

3. The claim for entitlement to service connection for diabetes mellitus, to include as secondary to gastroesophageal reflux disease, is dismissed.

4. The claim for entitlement to service connection for pancreatic cancer, to include as secondary to gastroesophageal reflux disease, is dismissed.

FINDING OF FACT

While the current appeal was pending at the Board and prior to the issuance of a final decision, the Board received notice that the Veteran died in March 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); 38 C.F.R. § 20.1302.  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1981 to September 1994, from February 2003 to February 2004, and from July 2005 to August 2006, including service in the Southwest Asia Theater of Operations.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In January 2020, the Board remanded this matter for further development. 

Dismissal

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).

 

 

MICHAEL KILCOYNE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Erin J. Trojanowski, 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.