Citation Nr: 1114167	
Decision Date: 04/11/11    Archive Date: 04/21/11

DOCKET NO.  99-01 506	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Whether new and material evidence has been received to reopen a previously denied claim of eligibility for Department of Veterans Affairs (VA) benefits based on the character of discharge, and if so, whether the character of the Appellant's discharge from service remains a bar to VA benefits.  


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

J. Murray, Associate Counsel 


INTRODUCTION

The Appellant served on active duty from April 1964 to April 1965 and from April 1965 to March 1973.  His time lost includes being in absent without leave (AWOL) status from May 1966 to March 1967, from December 1969 to March 1971 and from June 1971 to October 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1996 decision of the Department of Veterans Affairs (VA) Regional Office in Wichita, Kansas (RO).  In notification letter, the RO informed the Appellant that it could not acknowledge request to reopen his previously denied claims for compensation because the character of his discharge was a bar to VA benefits.  The Appellant appealed. 


FINDINGS OF FACT

In March 2011, VA was notified that the appellant died early that month.


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 (2010).


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); 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 appellant.  38 C.F.R. § 20.1106.

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(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.



____________________________________________
BARBARA C. MORTON 
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs