17-48 887

• Court: Board of Veterans' Appeals
• Decided: September 10, 2018
• Docket: 17-48 887
• Status: Unpublished

Opinion

Citation Nr: 1829851 Decision Date: 09/10/18 Archive Date: 09/24/18

DOCKET NO. 17-48 887 ) DATE ) )

On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota

THE ISSUES

1. Entitlement to service connection for thyroid cancer, to include as due to exposure to ionizing radiation.

2. Entitlement to service connection for basal cell carcinoma excisions, to include as due to exposure to ionizing radiation.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of the United States

ATTORNEY FOR THE BOARD

J. Bayles, Associate Counsel

INTRODUCTION

The appellant is a Veteran who served on active duty from May 1954 to May 1956. These matters are before the Board of Veterans' Appeals (Board) on appeal from a October 2015 rating decision by the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO).

FINDING OF FACT

In July 2018, the Board received notice that the Veteran died in July 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); 38 C.F.R. § 20.1302.

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); 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 appellant'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 (listed on the first page of this decision). 38 C.F.R. § 3.1010(b).

ORDER

The appeal is dismissed.

GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs