Citation Nr: 1126877 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 03-15 931 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether the appellant may be recognized as the Veteran's surviving spouse for VA benefit purposes. 2. Entitlement to service connection for the cause of the Veteran's death. 3. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C.A. § 1151. ATTORNEY FOR THE BOARD Scott Shoreman, Associate Counsel INTRODUCTION The Veteran was a Philippine Scout who served from December 1939 to June 1946. The appellant was seeking entitlement to benefits as the Veteran's surviving spouse. The initial claim for death benefits was filed by the appellant in January 1991, at which time she stated she was not claiming that the Veteran's death was service-connected. She was granted non-service-connected death pension, which she received until her status as surviving spouse was revoked in May 2000. In November 1996, the appellant filed a claim for DIC benefits, asserting that the Veteran's death had been due to service-connected disability. She also filed an additional claim, in May 1997, for DIC benefits pursuant to 38 U.S.C.A. § 1151, asserting that the Veteran's death in the Veterans Memorial Medical Center warranted benefits under that law. In a rating action dated in September 1997, the RO denied entitlement to service connection for cause of the Veteran's death and DIC pursuant to 38 U.S.C.A. § 1151. The appellant subsequently submitted a timely notice of disagreement (NOD) and substantive appeal as to the September 1997 rating decision. In January 2000, the Board remanded the cause-of-death and section-1151 claims for additional development, as it had been determined that the appellant had been married prior to her marriage to the Veteran. After additional development was conducted, the RO issued an Administrative Decision in May 2000, which found that the appellant had not been properly married to the Veteran, and thus could not file a claim for benefits as the Veteran's surviving spouse. After additional evidence was submitted, the RO reconsidered the claim in July 2001 and confirmed its decision that the appellant was not the surviving spouse of the Veteran. The appellant submitted an NOD in March 2002 and substantive appeal in June 2003. On her June 2003 substantive appeal, the appellant requested a Board hearing in Washington, DC. She had also requested a personal hearing at the RO. However, in May 2005, she withdrew all requests for hearings, and requested that her case be returned to the Board. In October 2005, the Board determined that the appellant is not the surviving spouse of the Veteran and is, thus, not eligible to receive benefits based upon the death of the Veteran. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). After litigation of the issues on appeal, the CAVC issued a Memorandum Decision, dated in November 2007, which remanded the appellant's claim to the Board for additional consideration. In July 2008, the Board remanded the appellant's claim for additional development pursuant to the Court's November 2007 Decision. The Board remanded the claim again for further development in November 2008. As discussed below, the claim must now be dismissed due to the death of the appellant, regardless of whether the development requested in the November 2008 Board remand was completed. FINDINGS OF FACT 1. During the course of the appellant's appeal to the Board, the Board was notified that the appellant had died. 2. The appellant's death certificate states that she died on October [redacted], 2008. CONCLUSIONS 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 & 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 (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 & 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 appellant. 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. ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs