15-37 401

• Court: Board of Veterans' Appeals
• Decided: July 17, 2018
• Docket: 15-37 401
• Status: Unpublished

Opinion

Citation Nr: 1829718 Decision Date: 07/17/18 Archive Date: 07/24/18

DOCKET NO. 15-37 401 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado

THE ISSUE

Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a jaw disability.

REPRESENTATION

Veteran represented by: Colorado Division of Veterans Affairs

ATTORNEY FOR THE BOARD

S. D. Regan, Counsel

INTRODUCTION

The Veteran served on active duty in the Army from September 1956 to September 1958.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, that determined that new and material evidence had not been received to reopen a claim for entitlement to service connection for a jaw disability (listed as a broken jaw).

The issue has been recharacterized to comport with the evidence of record.

FINDING OF FACT

In June 2018, the Board was notified that the Veteran died in June 2018.

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) (West 2014); 38 C.F.R. § 20.1302 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran died during the pendency of the appeal. As a matter of law, Veteran's 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) (2012); 38 C.F.R. § 20.1302 (2017).

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 (2017).

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 (2012); 38 C.F.R. § 3.1010(b) (2017). 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 (2012); see 38 C.F.R. § 3.1010(a) (2017). 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 (listed on the first page of this decision). 38 C.F.R. § 3.1010(b) (2017).

ORDER

The appeal is dismissed.

A. J. SPECTOR Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs