Citation Nr: 1829794	
Decision Date: 08/20/18    Archive Date: 08/30/18

DOCKET NO.  14-41 517	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, Puerto Rico


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus.

2.  Entitlement to service connection for bilateral hearing loss. 

3.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

J. Henriquez, Counsel


INTRODUCTION

The Veteran served on active duty service from May 1970 to August 1971 and from September 2002 to February 2003.  The Veteran had additional periods of service in the Army National Guard.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.


FINDING OF FACT

The Veteran died on July [redacted], 2018, during the pendency of the appeal.


CONCLUSIONS OF LAW

1.  Because of the Veteran's death, the Board has no jurisdiction to adjudicate the merits of the appeal of whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

2.  Because of the Veteran's death, the Board has no jurisdiction to adjudicate the merits of the appeal for entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

3.  Because of the Veteran's death, the Board has no jurisdiction to adjudicate the merits of the appeal for entitlement to service connection for tinnitus. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.



REASONS AND BASES FOR FINDING AND CONCLUSIONS

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).  Board adjudication of the issues on 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 any issue 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.  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 as to whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus is dismissed.

The appeal as to entitlement to service connection for bilateral hearing loss is dismissed.

The appeal as to entitlement to service connection for tinnitus is dismissed.




		
U. R. POWELL
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


