Citation Nr: 1111448	
Decision Date: 03/22/11    Archive Date: 04/05/11

DOCKET NO.  09-06 539	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Buffalo, New York




THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability to include whether referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted.




REPRESENTATION

Veteran represented by:	The American Legion






ATTORNEY FOR THE BOARD

S. Finn, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1953 to September 1955.

This case initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the RO.  

The Board remanded the case to the RO for further development in November 2009.


FINDINGS OF FACT

1.  The Veteran in this case served on active duty from October 1953 to September 1955.  

2.  The Board has been notified that the Veteran died in February 2011, prior to promulgation of a final decision as to the matter on appeal.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this claim at this time.  38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2010); 38 C.F.R. § 20.1302 (2010); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2010).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Unfortunately, the Veteran died during the pendency of the appeal.  (See Death Certificate received in October 2010).  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 Veteran and must be dismissed for lack of jurisdiction.  See 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2010); 38 C.F.R. § 20.1302 (2010).

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 (2010).  

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 a 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.


____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals



Department of Veterans Affairs