Citation Nr: 1009769	
Decision Date: 03/15/10    Archive Date: 03/24/10

DOCKET NO.  97-32 720A	)	DATE
	)

On appeal from the
U.S. Department of Veterans Affairs (VA) Regional Office (RO) 
in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an increased rating for bilateral pes planus 
with callosities, currently evaluated as 30% disabling.


REPRESENTATION

Appellant represented by:	Kenneth M. Carpenter, Attorney


WITNESS AT HEARING ON APPEAL

Appellant




INTRODUCTION

The Veteran had active service from September 1943 to October 
1947, and from January 1948 to June 1963.

This appeal to the Board of Veterans Appeals (Board) 
originally arose from a July 1996 rating action that denied a 
rating in excess of 30% for bilateral pes planus with 
callosities.

In March 1998, the Veteran at the RO testified at a Board 
videoconference hearing before the undersigned Veterans Law 
Judge in Washington, D.C.

By decision of December 1998, the Board, in pertinent part, 
remanded the matter of a rating in excess of 30% for 
bilateral pes planus with callosities to the RO for further 
development of the evidence and for due process development.

By decision of July 2002, the Board, in pertinent part, 
denied a rating in excess of 30% for bilateral pes planus 
with callosities.  The Veteran appealed the denial to the 
U.S. Court of Appeals for Veterans Claims (Court).  By 
October 2005 Order, the Court, in pertinent part, vacated 
that portion of the Board's July 2002 decision that denied a 
rating in excess of 30% for bilateral pes planus with 
callosities, and remanded the matter to the Board for 
readjudication.

By decision of April 2006, the Board remanded this case to 
the RO for further development of the evidence and for due 
process development.

By decision of April 2008, the Board, in pertinent part, 
denied a rating in excess of 30% for bilateral pes planus 
with callosities.  The Veteran again appealed the denial to 
the Court.  By April 2009 Order, the Court vacated that 
portion of the Board's April 2008 decision that denied a 
rating in excess of 30% for bilateral pes planus with 
callosities, and remanded the matter to the Board for 
compliance with instructions contained in an April 2009 Joint 
Motion of the Appellant and the VA Secretary.


FINDING OF FACT

In February 2010, the RO notified the Board that the Veteran 
died in November 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 
(2009); but see Veterans' Benefits Improvement Act of 2008, 
Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). 


REASONS AND BASES FOR FINDING AND CONCLUSION

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 thus 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); 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 (2009).  

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 1 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 10 October 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 VA 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 RO from which 
the claim originated (listed on the first page of this 
decision).  


ORDER

The appeal is dismissed.



		
THOMAS A. PLUTA
	Veterans Law Judge, Board of Veterans Appeals


 Department of Veterans Affairs