Citation Nr: 1136852	
Decision Date: 09/29/11    Archive Date: 10/11/11

DOCKET NO.  05-00 293	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for a back disorder.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

Appellant and daughter


ATTORNEY FOR THE BOARD

E. Woodward Deutsch, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1953 to May 1955.

This matter initially came before the Board of Veterans' Appeals (Board) from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which declined to reopen the Veteran's previously denied claim for service connection for a back disorder.  

In July 2005, the Veteran was afforded a videoconference hearing before the undersigned Acting Veterans Law Judge, who was designated by the Chairman of the Board to conduct the hearing pursuant to 38 U.S.C.A. § 7101(c) (West 2002 & Supp. 2011).  A transcript of the hearing testimony is associated with the claims file.

After issuing remands in December 2005 and April 2006, the Board determined in a June 2007 decision that new and material evidence existed to reopen the Veteran's back disorder claim.  The Board then remanded that reopened claim for additional development.  Thereafter, the Board issued a March 2009 decision denying the Veteran's claim.  The Veteran appealed that Board denial to the United States Court of Appeals for Veterans Claims (Court). 

Pursuant to a Joint Motion for Remand, the Court issued a January 2010 Order vacating the March 2009 decision and remanding the matter to the Board for reajudication.  In an ensuing July 2010 decision, the Board granted the Veteran's back disorder claim.  Regrettably, the Board has since learned that the Veteran died in August 2009, while his appeal was still pending.  Consequently, the Board has now vacated its prior July 2010 decision under separate cover.


FINDINGS OF FACT

1.  The Board has received confirmation that the Veteran died on August [redacted], 2009.  

2.  At the time of his death, the Veteran had a pending claim for service connection for a low back disorder.


CONCLUSION OF LAW

The pending appeal is dismissed due to the Veteran's death.  38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2011); 38 C.F.R. § 20.1302 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Regrettably, the Veteran died in August 2009.  At the time of his death, he had a pending claim for service connection for a low back disorder.  However, as a matter of law, appellants' claims do not survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330 (1997); Landicho v. Brown, 7 Vet. App. 42 (1994).

As the Veteran's claim has been rendered moot by his death, it is dismissed for lack of jurisdiction.  38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2011); 38 C.F.R. § 20.1302 (2010).  

The Board wishes to assure the Veteran's surviving spouse that its dismissal of this appeal does not affect her right, or that of another eligible person, to file a request to be substituted as the Veteran for purposes of processing the claim to completion.  See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2010) (creating new 38 U.S.C.A. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008).  As provided for in the new provision, a person eligible for substitution includes a living person who would be eligible to receive accrued benefits due to the Veteran under 38 U.S.C.A. § 5121(a).  VA will issue 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 Veteran should file a request for substitution with the RO from which the claim originated. 


ORDER

The appeal is dismissed due to the Veteran's death.



____________________________________________
J. CONNOLLY
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs