17-51 472 ( 2018 )

Citation Nr: 1829862
Decision Date: 09/06/18 Archive Date: 09/24/18
DOCKET NO. 17-51 472 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Fort Harrison, Montana
THE ISSUES
1. Entitlement to service connection for diabetes mellitus.
2. Entitlement to service connection for left lower extremity peripheral neuropathy.
REPRESENTATION
Appellant represented by: Robert V. Chisholm, Attorney
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from February 1953 to February 1973. These matters are before the Board of Veterans' Appeals (the Board) on appeal from a July 2017 rating decision by the Fort Harrison, Montana Department of Veterans Affairs (VA) Regional Office (RO).
FINDING OF FACT
On June 28, 2018, the Board was notified by the Veteran's representative that the appellant died in April 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.A. § 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