Citation Nr: 1110042	
Decision Date: 03/14/11    Archive Date: 03/24/11

DOCKET NO.  10-08 905	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to a waiver of recovery of an overpayment of Department of Veterans Affairs compensation benefits in the amount of $9,401.00


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

Patricia A. Talpins, Counsel 







INTRODUCTION

This matter comes before the Board of Veterans' Appeals ("BVA" or "Board") on appeal from a June 2009 decision of the Department of Veterans Affairs ("VA") Regional Office ("RO") in Milwaukee, Wisconsin in which the RO denied the benefit sought on appeal.  The Veteran, who had active service from	October 1967 to June 1969, appealed that decision to the BVA.  Thereafter, the RO referred the case to the Board for appellate review.    


FINDING OF FACT

In February 2011, the Board obtained information from the RO via the United States Social Security Administration that the Veteran died on October [redacted], 2010; and information from the United States Social Security Administration database that reflects the date of the Veteran's death has been associated with the claims file.  


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the above-referenced 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 this appeal.  As a matter of law, veterans' 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.  See 38 C.F.R. § 20.1106 (2010).  

For the record, 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 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.



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs