Citation Nr: 1134294	
Decision Date: 09/13/11    Archive Date: 09/22/11

DOCKET NO.  09-19 545	)	DATE
	)

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


THE ISSUES

1.  Entitlement to service connection for lymphoma (Waldenstrom's macroglobulinemia), due to ionizing radiation.  

2.  Entitlement to service connection for chronic renal failure, claimed as kidney damage, secondary to service-connected malaria.  

3.  Entitlement to an increased (compensable) evaluation for malaria.  


REPRESENTATION

Appellant represented by:	The American Legion

WITNESSES AT HEARING ON APPEAL

The Veteran, spouse and C. Bash, M.D.


ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel

INTRODUCTION

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2008 decision by the RO which denied the benefits sought on appeal.  A hearing before the undersigned member of the Board was held in Washington, DC in September 2009.  

In January 2010, the Board denied the Veteran's claims, and he appealed that decision to the United States Court of Appeals for Veterans Claims ("Court").  In January 2011, the Court granted a Joint Motion for Remand and vacated the January 2010 Board decision.  The Board remanded the appeal for additional development in May 2011.  


FINDINGS OF FACT

1.  The Veteran served on active duty from December 1943 to March 1946.  

2.  Information obtained from the Social Security Administration Date base in August 2011, showed that the Veteran died in April 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 FINDINGS AND CONCLUSION

Unfortunately, the Veteran (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 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 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.  



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs