Citation Nr: 1111349	
Decision Date: 03/22/11    Archive Date: 04/05/11

DOCKET NO.  09-26 508	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a total disability evaluation due to individual unemployability (TDIU) as a result of service-connected disabilities.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel




INTRODUCTION


The Veteran served on active duty from November 1962 to August 1970.  

This matter comes to the Board of Veterans' Appeals (Board) from a July 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a TDIU.  A notice of disagreement was filed in August 2008, a statement of the case was issued in March 2009, and a substantive appeal was received in June 2009.  


FINDINGS OF FACT

1.  The Veteran in this case served on active duty from November 1962 to August 1970.

2.  On February 28, 2011, the Board was notified by the VA St. Petersburg RO that the Veteran died in July 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 Veteran and must be dismissed for lack of jurisdiction.  See 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302.

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.  

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


ORDER

The appeal is dismissed.



		
THOMAS J. DANNAHER
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs