Citation Nr: 1110634	
Decision Date: 03/17/11    Archive Date: 03/30/11

DOCKET NO.  09-24 874	)	DATE
	)

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


THE ISSUES

1.  Entitlement to a compensable rating for residuals of malaria.

2.  Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss.

3.  Entitlement to service connection for bilateral vision loss.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Kristy L. Zadora, Associate Counsel


INTRODUCTION

The Veteran had active duty service from July 1948 to October 1951.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of the Huntington, West Virginia Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran's claim for an increased rating for residuals of malaria.  This rating decision also denied his request to reopen his claim for service connection for bilateral hearing loss and his claim for service connection for bilateral loss of vision.


FINDINGS OF FACT

On February 8, 2011, the Board was notified by the VA RO in Huntington, West Virginia that the Veteran died in August 2010.


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


ORDER

The appeal is dismissed.


		
Mark D. Hindin
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs