15-28 832

Citation Nr: 1602914

Decision Date: 01/29/16 Archive Date: 02/05/16

DOCKET NO. 15-28 832 ) DATE

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On appeal from the

Department of Veterans Affairs Regional Office in Anchorage, Alaska

THE ISSUES

1. Entitlement to service connection for a brain tumor, claimed as due to exposure to herbicides and/or ionizing radiation.

2. Entitlement to service connection for total blindness.

3. Entitlement to service connection for sinus tumors, claimed as due to exposure to ionizing radiation.

4. Entitlement to service connection for loss of sense of smell, claimed as secondary to brain tumor.

5. Entitlement to service connection for loss of sense of taste, claimed as secondary to brain tumor.

6. Entitlement to service connection for central nervous system/spinal cord tumor, claimed as due to exposure to ionizing radiation.

REPRESENTATION

Veteran represented by: Veterans of Foreign Wars of the United States

WITNESS AT HEARING ON APPEAL

The Veteran's spouse

ATTORNEY FOR THE BOARD

Debbie A. Breitbeil, Counsel

INTRODUCTION

The appellant is a Veteran who served on active duty in the Air Force from August 1966 to September 1972. He died in January 2016. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The file was subsequently transferred to the Anchorage, Alaska RO, which is currently handling the appeal. In December 2015, the Veteran's spouse appeared at the RO and testified at a videoconference hearing before the undersigned Veterans Law Judge. She held his durable power of attorney. The Veteran was unable to appear as he was under hospice care. A transcript of the hearing has been associated with the record. At the hearing, the undersigned granted the motion to advance his appeal on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014).

FINDING OF FACT

According to the Social Security Administration, the Veteran died in January 2016, before a decision by the Board was promulgated on the appeal.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claims of entitlement to service connection for brain tumor, total blindness, sinus tumors, loss of sense of smell and taste, and central nervous system/spinal cord tumor, at this time. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2015); but see 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010.

REASONS AND BASES FOR FINDING AND CONCLUSION

According to the records of the Social Security Administration, a Federal agency, the Veteran died in January 2016, before the Board promulgated a decision on the appeal. In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted as proof of death. 38 C.F.R. § 3.211(g). As there is no evidence to the contrary, the Board accepts the finding by the Social Security Administration as proof of the Veteran's death during the pendency of the appeal and before the Board promulgated a decision on the appeal of the claims of entitlement to service connection for brain tumor, total blindness, sinus tumors, loss of sense of smell and taste, and central nervous system/spinal cord tumor.

As the Veteran died during the pendency of the appeal, as a matter of law the appeal does not survive his death, and the appeal of the claim must be dismissed for lack of jurisdiction. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2015); Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Landicho v. Brown, 7 Vet. App. 42, 53-54 (1994).

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 (2015).

The Board's dismissal of the 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 Veteran's death. See 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010(b) (2015). 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.A. § 5121A (West 2014); see 38 C.F.R. § 3.1010(a) (2015). 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) (2015).

ORDER

The appeal of the claims of entitlement to service connection for brain tumor, total blindness, sinus tumors, loss of sense of smell and taste, and central nervous system/spinal cord tumor, is dismissed.

M. C. GRAHAM

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs