Citation Nr: 1007362	
Decision Date: 02/26/10    Archive Date: 03/05/10

DOCKET NO.  05-00 875	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


THE ISSUE

Entitlement to an effective date earlier than March 2, 1999 
for the grant of Dependency and Indemnity Compensation (DIC) 
under 38 U.S.C.A. § 1151.


REPRESENTATION

Appellant represented by:	Samuel M. Tumey, Attorney


ATTORNEY FOR THE BOARD

D.S. Lee, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1943 through 
December 1946.  The Veteran died in June 1987.  The appellant 
is the Veteran's widowed spouse.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an August 1996 rating decision issued 
by the Department of Veterans Affairs (VA) Regional Office 
(RO) in Montgomery, Alabama.

In an October 2008 Board decision, the appellant's claim of 
entitlement to an effective date earlier than March 2, 1999 
for DIC under 38 U.S.C.A. § 1151 was denied.  The appellant 
subsequently filed an appeal to the United States Court of 
Appeals for Veterans Claims (Court).  In July 2009, the Court 
was advised that the appellant had died.  The appellant's 
representative was ordered to provide a copy of the death 
certificate and to show cause as to why the Board's October 
2008 decision should not be vacated and the appeal dismissed.  
In September 2009, the appellant's representative provided 
the Court with a copy of a Social Security Death Index which 
reflected that the appellant had died in June 2009, but did 
not address any other issues.  Accordingly, in a November 
2009 Memorandum Decision, the Court vacated the Board 
decision and dismissed the appeal.  In February 2010, the 
time for reconsideration, review, or appeal of the Court's 
November 2009 Decision having passed, the Court mandated that 
its decision was final and not subject to further review.


FINDINGS OF FACT

1.	The Veteran in this case served on active duty from 
August 1943 through December 1946.  The appellant is the 
Veteran's widow.

2.	By the Court's February 2010 Mandate, the Board was 
notified that the appellant died in June 2009.


CONCLUSION OF LAW

Due to the death of the appellant, the Board has no 
jurisdiction to adjudicate the merits of this claim at this 
time.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 
(2008); but see Veterans' Benefits Improvement Act of 2008, 
Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). 


REASONS AND BASES FOR FINDINGS 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) (West 2002); 38 
C.F.R. § 20.1302 (2008).

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 (2008).  

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 
Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-
389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 
38 U.S.C. § 5121A, substitution in case of death of a 
claimant who dies on or after October 10, 2008).  As provided 
for in this new provision, a person eligible for substitution 
will include "a living person who would be eligible to 
receive accrued benefits due to the claimant under section 
5121(a) of this title ...."  The Secretary will be issuing 
regulations governing the rules and procedures for 
substitution upon death.  Until such regulations are issued, 
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 regional 
office (RO) from which the claim originated (listed on the 
first page of this decision).  


ORDER

The appeal is dismissed.




		
MARY GALLAGHER
	Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs