Citation Nr: 0813040	
Decision Date: 04/21/08    Archive Date: 05/01/08

DOCKET NO.  00-18 583	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the 
Republic of the Philippines

		
THE ISSUE

Whether the appellant has basic eligibility for Department of 
Veterans Affairs (VA) death benefits.


REPRESENTATION

Appellant represented by:	Kathy A. Lieberman, Attorney- 
at-Law


ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Associate Counsel


INTRODUCTION

The appellant claimed that her deceased spouse had military 
service in the United States Armed Forces during World War 
II.  

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of a rating decision in May 2000 of the Department 
of Veterans Affairs (VA) Manila, Philippines, Regional Office 
(RO). 


FINDING OF FACT

The appellant died before the Board promulgated a decision on 
her appeal.


CONCLUSION OF LAW

Due to the death of the appellant, the Board does not have 
appellate jurisdiction to review the claim.  38 U.S.C.A. § 
7104(a) (West 2002 & Supp. 2007); 38 C.F.R. § 20.1302 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

By a May 2001 decision, the Board denied the appellant's 
entitlement to eligibility for VA death benefits. The 
appellant appealed the Board's decision to the United States 
Court of Appeals for Veterans Claims (Court). In March 2003, 
the Court vacated the Board's decision and remanded to 
clarify whether VA had notified the appellant of the 
additional evidence she must submit to prove her claim.  

Thereafter, the Federal Circuit vacated the Veterans Court's 
decision and remanded for further proceedings and in August 
2005 the Veterans Court again vacated and remanded on the 
notice issue.  

A copy of a death certificate shows that the appellant died 
on September 8, 2005, before the Board promulgated a decision 
on her appeal.

In June 2006, the Veterans Court found that the appellant's 
claim did not survive her death, denied a motion by the 
appellant's representative to substitute the appellant's 
estate, withdrew its latest opinion, and dismissed the 
appeal.  In August 2007, The Federal Circuit found that the 
appellant's claims for DIC benefits terminated on her death.  
Pelea v. Nicholson, 497 F.3d 1290 (Fed. Cir. 2007).

As a matter of law, a claim does not survive the death of the 
claimant.  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); Pelea v. 
Nicholson, 497 F.3d 1290 (Fed. Cir. 2007).  The appeal has 
become moot by virtue of the death of the appellant and the 
appeal must be dismissed for the lack of jurisdiction.  38 
U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302.


ORDER

The appeal is dismissed.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs