Citation Nr: 21027958
Decision Date: 05/07/21	Archive Date: 05/07/21

DOCKET NO. 17-65 895
DATE: May 7, 2021

ORDER

Entitlement to service connection for type 2 diabetes mellites (DM2) to include as due to exposure to an herbicide agent is dismissed.

Entitlement to service connection for right upper extremity peripheral neuropathy secondary to DMII is dismissed.

Entitlement to service connection for left upper extremity peripheral neuropathy secondary to DMII is dismissed.

Entitlement to service connection for right lower extremity peripheral neuropathy secondary to DMII is dismissed.

Entitlement to service connection for left lower extremity peripheral neuropathy secondary to DMII is dismissed.

FINDING OF FACT

In April 2021, the Department of Veterans Affairs (VA) was notified that the Veteran died in April 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 FINDING AND CONCLUSION

The Veteran served on active duty from May 1968 to April 1970.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of the VA Regional Office (RO) which, among other things, continued its previous denial of the Veteran's claims for service connection for DMII, and right and left upper and lower extremity peripheral neuropathy.

In February 2017, the Veteran filed his notice of disagreement, was issued a statement of the case in October 2017, and in December 2017 perfected his appeal to the Board.

The Veteran requested a Board hearing before a Veterans Law Judge which was scheduled for February 28, 2020.  However, in a February 10, 2020 letter, the Veteran requested that the hearing be rescheduled to allow additional time for him to gather information regarding his claim.

Unfortunately, the Veteran 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 Veteran and must be dismissed for lack of jurisdiction.  See 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.

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 Veteran's death.  See 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; see 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). 

 

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Maddox, 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.