Citation Nr: 21025483 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-24 799 DATE: April 28, 2021 ORDER Service connection for prostate cancer, to include as due to herbicide exposure, on the basis of substitution, is dismissed. Service connection for melanoma, to include as due to herbicide exposure, on the basis of substitution, is dismissed. Service connection for Parkinson’s disease, to include as due to herbicide exposure, on the basis of substitution, is dismissed. Service connection for frontotemporal dementia with Parkinsonism, to include as due to herbicide exposure, on the basis of substitution, is dismissed. FINDINGS OF FACT 1. The Veteran died in August 2016. 2. The appellant filed a request for substitution in October 2020, more than four years after the Veteran’s death. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeal for service connection for prostate cancer, to include as due to herbicide exposure, on the basis of substitution, have been met. 38 U.S.C. §§ 5121(c), 5121A; 38 C.F.R. § 3.1010(b). 2. The criteria for dismissal of the appeal for service connection for melanoma, to include as due to herbicide exposure, on the basis of substitution, have been met. 38 U.S.C. §§ 5121(c), 5121A; 38 C.F.R. § 3.1010(b). 3. The criteria for dismissal of the appeal for service connection for Parkinson’s disease, to include as due to herbicide exposure, on the basis of substitution, have been met. 38 U.S.C. §§ 5121(c), 5121A; 38 C.F.R. § 3.1010(b). 4. The criteria for dismissal of the appeal for service connection for frontotemporal dementia with Parkinsonism, to include as due to herbicide exposure, on the basis of substitution, have been met. 38 U.S.C. §§ 5121(c), 5121A; 38 C.F.R. § 3.1010(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from September 1961 to January 1966. The appellant is the Veteran’s surviving spouse. The matter was appealed to the Board from a September 2014 rating decision. In November 2017 the Board remanded the issues for further development. During the pendency of the appeal, the Board was notified of the Veteran’s death in August 2016. As such, in May 2019, the Board dismissed the issues, because as a matter of law, Veterans’ 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). Thus, the appeal on the merits had become moot by virtue of the death of the Veteran and had to be dismissed for lack of jurisdiction. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. The Board explained that the dismissal of the claims on appeal did not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claims to completion, but cautioned that by law such a 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). The appellant first submitted a request for substitution in October 2020, more than four years after the Veteran’s death. The Board notes that the appellant was recognized by the RO as a valid claimant for substitution in October 2020. Regardless, as the appellant did not file a request for substitution within a year of the Veteran’s death, the issues must be dismissed as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, and not the evidence, is dispositive of a claim, the claim should be denied or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law). Accordingly, the appellant’s claim is dismissed. While substitution and accrued benefits are no longer an option for the appellant, if the appellant believes that the cause of the Veteran’s death was related to his active duty service, to include exposure to herbicides, then there is still the option that she may file for Dependency and Indemnity Compensation (DIC) for the cause of the Veteran’s death. (Continued on the next page)   It is noted that the appellant filed a form titled Application for DIC, Survivor’s Pension, and/or Accrued Benefits in January 2021. However, the appellant only checked the box for accrued benefits. Should she wish to pursue a claim for service connection for the cause of the Veteran’s death, she should resubmit this form and check the box for DIC (Dependency and Indemnity Compensation). In so doing, the appellant would be arguing that the Veteran’s death was the result of diseases that were caused by his exposure to herbicides while serving on the U.S.S. Columbus in the territorial waters of Vietnam. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.