Citation Nr: 1125960	
Decision Date: 07/11/11    Archive Date: 07/19/11

DOCKET NO.  05-21 679	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to an award of a total disability evaluation based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Mecone, Associate Counsel






INTRODUCTION

The Veteran had active military service from June 1960 to October 1963.

By way of an April 2010 Memorandum decision, the United States Court of Appeals for Veterans Claims (Court) vacated and remanded a June 2008 decision by the Board that had denied the Veteran's claim for an award of TDIU.  The Court was subsequently notified of the appellant's death, and in December 2010, the Court recalled its mandate and judgment, and revoked its memorandum decision, which was followed by a January 2011 memorandum decision vacating the Board's 2008 denial and dismissing the appeal.


FINDING OF FACT

The Veteran died on June [redacted], 2009, and the Court has vacated the Board's 2008 denial of the appeal of a claim for TDIU.


CONCLUSION OF LAW

Because of the death of the appellant, 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 (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 appellant died after he appealed to the Court the Board's 2008 decision on his claim for TDIU.  The has Court vacated the Board's denial and dismissed the appeal because of the Veteran's death.  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 before the Board 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 per se 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.  However, 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 title page of this decision).  


ORDER

The appeal is dismissed.



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs