Citation Nr: 1829754
Decision Date: 07/25/18 Archive Date: 08/02/18
DOCKET NO. 17-41 048 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUE
Whether a timely substantive appeal was filed in response to a July 2016 statement of the case with respect to the issue of entitlement to service connection for acute myelogenous leukemia without maturation.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. Smith, Counsel
INTRODUCTION
The Veteran served on active duty from August 1967 to August 1969 in the United States Army.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 determination of the Department of Veterans Affairs (VA) Regional Office (RO).
FINDING OF FACT
In April 2018, the Board received notification that the Veteran 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. § 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 of whether a timely substantive appeal was filed in response to a July 2016 statement of the case with respect to the issue of entitlement to service connection for acute myelogenous leukemia without maturation is dismissed.
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs