Citation Nr: 1760260
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-18 842 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia

THE ISSUE

Entitlement to a rating in excess of 20 percent for post-operative residuals of prostate cancer.

REPRESENTATION

Veteran represented by: Georgia Department of Veterans Services

WITNESS AT HEARING ON APPEAL

The Veteran’s Spouse (Fiduciary)

ATTORNEY FOR THE BOARD

J. Smith-Jennings, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1970 to May 1973 and from August 1979 to July 1992.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. Jurisdiction was subsequently transferred to the RO in Atlanta, Georgia.

The Veteran’s spouse, who served as his fiduciary, testified at a hearing via videoconference in June 2017. A transcript of the hearing is of record.

FINDING OF FACT

While the appeal was pending and prior to the issuance of a final decision, VA received notice that the Veteran passed away in November 2017.

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) (2012); 38 C.F.R. § 20.1302 (2017); but see 38 U.S.C. § 5121A (2012); 38 C.F.R. §§ 3.1010, 20.1106 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

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 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. § 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.

____________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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