Citation Nr: 18132229
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-37 889
DATE:	September 6, 2018
The request to reopen entitlement to service connection for type II diabetes mellitus is dismissed.

In January 2018, prior to the promulgation of a decision in the appeal, the Board received notification the Veteran died in December 2017.

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). 

The Veteran served on active duty from February 1982 to October 1984.  This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated in September 2014 by a Department of Veterans Affairs (VA) Regional Office (RO).  

Unfortunately, the Veteran died during the pendency of the appeal.  In January 2018, the Veteran’s widow informed the RO of the death of the Veteran and submitted a copy of the death certificate.  

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).  Accordingly, 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.  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 Agency of Original Jurisdiction (AOJ) not later than one year after the date of the Veteran’s death.  38 C.F.R. §§ 3.1010(b), 20.1302(a).  If the AOJ grants the request to substitute, the case will assume its original place on the Board’s docket. 38 C.F.R. §§ 20.1302 (a), 20.900(a)(2).
Veterans Law Judge
Board of Veterans’ Appeals

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