Citation Nr: 1136871	
Decision Date: 09/30/11    Archive Date: 10/11/11

DOCKET NO.  07-18 289	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to compensation benefits under 38 U.S.C § 1151 for additional disability resulting from a carposcopic carpal tunnel release of the right wrist performed at the Beckley VA Medical Center on October 16, 2002.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Sonnet Gorham, Counsel





INTRODUCTION

The Veteran served on active duty from July 1979 to April 1980.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.


FINDING OF FACT

In September 2011, the Board was notified by the Huntington RO that the Veteran died in August 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 appellant died during the pendency of the appeal.  The record contains a copy of an obituary for the Veteran, in which there is a message and tribute from the Veteran's family.  See 38 C.F.R. § 3.211(a)(1).  The Board wishes to express its deepest condolences to the Veteran's family for their loss.  

Regarding the appeal pending before the Board, 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); 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 from which the claim originated (listed on the first page of this decision).  


ORDER

The appeal is dismissed.




		
Laura H. Eskenazi
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs