Citation Nr: 1111455	
Decision Date: 03/22/11    Archive Date: 04/05/11

DOCKET NO.  03-18 976	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder.


REPRESENTATION

Veteran represented by:	Darla J. Lilley, Attorney at Law


WITNESSES AT HEARING ON APPEAL

Veteran and his son


ATTORNEY FOR THE BOARD

N. L. Northcutt, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from February 1968 to February 1970.  He died in August 2010.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in February 2003.  

The Board denied the Veteran's service connection claim for an acquired psychiatric disorder (referred to as major depression) in a decision issued in September 2005.  The Veteran subsequently appealed the denial of this claim to the United States Court of Appeals for Veterans Claims (Court), who granted a Joint Motion for Remand (Joint Motion) in an Order issued in December 2006.  The Board remanded the Veteran's claim for further development in compliance with the Joint Motion in May 2007, and thereafter denied the Veteran's claim in December 2008.  The Veteran then sought to appeal the Board's denial to the Court, and the Veteran died in August 2010 during the pendency of his appeal.


FINDING OF FACT

1.  The Veteran died in August 2010.

2.  Due to the death of the Veteran, a December 2010 Court Order vacated the Board's December 2008 decision denying the Veteran's acquired psychiatric disorder service connection claim and dismissed the Veteran's 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); 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 (2008).


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran 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 Veteran and must be dismissed for lack of jurisdiction.  See 38 U.S.C.A. § 7104(a) (West 2002); 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).


ORDER

The appeal is dismissed.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs