Citation Nr: 1122500	
Decision Date: 06/09/11    Archive Date: 06/20/11

DOCKET NO.  08-11 878	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1. Entitlement to a disability rating higher than10 percent for blepharitis.

2. Entitlement to a disability rating higher than 10 percent for actinic keratoses secondary to sun exposure.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from June 1944 to June 1946.

These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which continued a 10 percent disability rating for blepharitis and denied service connection for actinic keratoses secondary to sun exposure.  

These matters were previously before the Board in April 2010, when they were remanded for further development, including a VA examination.  As the requested development has been completed, no further action to ensure compliance with the remand directive is required.  Stegall v. West, 11 Vet. App. 268 (1998). 

On remand, in an August 2010 rating decision, service connection was granted for actinic keratoses secondary to sun exposure, and a 10 percent disability rating was assigned.  Subsequent to that rating decision, within the appeals window, the Veteran submitted additional evidence regarding the severity of his condition, which the RO construed as an appeal of the assigned disability rating.  A Supplemental Statement of the Case was issued with respect to the question of the assigned disability rating in April 2011, with the issue mentioned in a May 2011 brief from the Veteran's representative.


FINDINGS OF FACT

1. The Veteran in this case served on active duty from June 1944 to June 1946.

2. On June 2, 2011, the Board was notified by the Boston RO that the appellant died in May 2011.



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 (2010); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). 


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) (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).  

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 (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.




		
                                         A. C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs