Citation Nr: 1016331	
Decision Date: 05/03/10    Archive Date: 05/13/10

DOCKET NO.  06-26 398	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for hepatitis C.  

2.  Entitlement to service connection for cirrhosis of the 
liver, residuals of hepatitis C.  
	

WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. Lipstein, Associate Counsel




INTRODUCTION

The Veteran served on active duty from February 1973 to 
December 1977.  


FINDINGS OF FACT

1.  The Veteran served on active duty from February 1973 to 
December 1977.  

2.   In April 2010, the Board received notice of the 
Veteran's death on February [redacted], 2010.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no 
jurisdiction to adjudicate the merits of this appeal. 38 
U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As noted above, the Veteran died while his case was pending 
before the Board.  As a matter of law, veterans' claims do 
not survive their deaths.  See 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).

In Landicho, the Court held that when a claimant dies during 
the course of an appeal, the appropriate remedy is to vacate 
the Board's decision from which the appeal was taken.  The 
Court further held that this would have the legal effect of 
nullifying the previous merits adjudications by the RO (i.e., 
causing the underlying decisions by the RO to be vacated as 
well), because the RO's decisions are subsumed in the 
decision by the Board.  See Smith, 10 Vet. App. 333-34; see 
also Yoma v. Brown, 8 Vet. App. 298 (1995); 38 C.F.R. 
§ 20.1104.

Because the Veteran's appeal to the Board became moot at the 
time of his death, the Board's March 2009 remand is of no 
legal effect.  See 38 C.F.R. § 20.1302.  The dismissal of the 
appeal on these grounds ensures that the decision by the 
Board and the underlying decisions by the RO have no 
preclusive effect in the adjudication of any death benefits 
claims derived from the appellant's entitlements, and which 
may ensue in the future.  

Therefore, consistent with the Court's reasoning set forth in 
Landicho, and to accord due process, the Board vacates its 
March 2009 remand and dismisses the appeal.  See 38 C.F.R. 
§ 20.904(a). 


ORDER

The appeal is dismissed.



____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs