Citation Nr: 1127733	
Decision Date: 07/25/11    Archive Date: 08/02/11

DOCKET NO.  07-30 878	)	DATE
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Detroit, Michigan


THE ISSUE

Entitlement to an effective date prior to November 10, 2005, for the grant of entitlement to service connection for a scar resulting from surgery for a right inguinal hernia.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Harold A. Beach


INTRODUCTION

The Veteran served on active duty from February 1951 to February 1953.

This matter came to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the RO.  

In March 2011, during the course of the appeal, the Veteran had a hearing at the RO before the Acting Veterans Law Judge whose signature appears at the end of this decision.  


FINDING OF FACT

On July 8, 2011, the Social Security Administration notified the Board that the Veteran had died in June 2011.  


CONCLUSION OF LAW

Due to the death of the Veteran, 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 FINDING AND CONCLUSION

Unfortunately, the Veteran 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).  Therefore, this appeal on the merits has become moot by virtue of the death of the Veteran 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 Veteran for purposes of processing the claim to completion.  Such request must be filed not later than one year after the date of the Veteran'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 VA 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 VARO from which the claim originated (listed on the first page of this decision).  



ORDER

The appeal is dismissed.



		
LANA K. JENG
	Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs