17-45 240

• Court: Board of Veterans' Appeals
• Decided: June 28, 2018
• Docket: 17-45 240
• Status: Unpublished

Opinion

Citation Nr: 1829622 Decision Date: 06/28/18 Archive Date: 07/02/18

DOCKET NO. 17-45 240 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in San Diego, California

THE ISSUE

Entitlement to service connection for prostate cancer.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars

ATTORNEY FOR THE BOARD

Amanda Christensen, Counsel

INTRODUCTION

The Veteran had active service from February 1971 to February 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.

FINDING OF FACT

The Veteran died in May 2018.

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal at this time. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

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. 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 appellant's death. See 38 U.S.C.A. § 5121A (West 2014); 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.

H. SEESEL Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs