Citation Nr: 1106779	
Decision Date: 02/18/11    Archive Date: 02/28/11

DOCKET NO.  08-09 276	)	DATE
	)

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


THE ISSUE

Entitlement to an effective date prior to September 23, 1999 for 
the assignment of a 100 percent disability rating for service-
connected hemorrhoidectomy residuals with rectal incontinence.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

C. Lawson, Counsel


INTRODUCTION

The Veteran served on active duty from April 1966 to April 1970.  

This matter comes before the Board of Veterans' Appeals (the 
Board) on appeal from a June 2007 rating decision of the 
Department of Veterans Affairs (VA) Regional Office in Waco, 
Texas (the RO). 

The Veteran presented testimony before the undersigned in 
September 2010.  A transcript of this hearing has been associated 
with his VA claims file.


FINDING OF FACT

The Veteran died in October 2010 while his appeal was pending 
before the Board.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to 
adjudicate the merits of the claim at this time.  38 U.S.C.A. § 
7104(a) (West 2002); 38 C.F.R. § 20.1302 (2010). 


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).  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 RO from which the claim originated (listed 
on the first page of this decision).  







      (CONTINUED ON NEXT PAGE)





ORDER

The appeal is dismissed.




		
DONNIE R. HACHEY
	Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs