Citation Nr: 1127673	
Decision Date: 07/25/11    Archive Date: 08/02/11

DOCKET NO.  11-06 642	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Legal entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund.


REPRESENTATION

Appellant represented by:	Hawaii Office of Veterans Services


ATTORNEY FOR THE BOARD

A.J. Turnipseed, Counsel





INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from adverse action in January 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, wherein the RO determined that the appellant did not have service that makes him eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund.


FINDING OF FACT

In July 2011, the Board was notified that the appellant died in April 2011.  


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).


REASONS AND BASES FOR FINDING AND CONCLUSION

In January 2010, the RO denied the appellant's claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund on the basis that he did not have qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  

The appellant filed a timely notice of disagreement as to the RO's January 2010 determination, and the RO subsequently issued a statement of the case (SOC) in November 2010.  In February 2011, the Veteran perfected his appeal and requested a video conference Board hearing in conjunction with his claim.  The appellant's claim was certified to the Board and he was scheduled a video conference hearing in April 2011.  However, while notice of the hearing was sent to the appellant's address of record, he did not appear for the scheduled hearing.  

Unfortunately, the appellant died during the pendency of the appeal.  In July 2011, the Board was notified that the appellant died on April [redacted], 2011.  

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).  Accordingly, this appeal on the merits, and the appellant's request for a video conference hearing, 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 (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.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs