Citation Nr: 1204841	
Decision Date: 02/08/12    Archive Date: 02/16/12

DOCKET NO.  10-07 262	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota


THE ISSUE

Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disabilities incurred as a result of the surgical implantation and maintenance of penile implants.


REPRESENTATION

Veteran represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

S. Pflugner



INTRODUCTION

The Veteran served on active duty from February 1968 to November 1969.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Sioux Falls, South Dakota.


FINDING OF FACT

In November 2011, the Board was informed that the Veteran died on October [redacted], 2011.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for additional disabilities incurred as a result of the surgical implantation and maintenance of penile implants.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302(1) (2011); 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

The Veteran died during the pendency of the 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).  Accordingly, the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for additional disabilities incurred as a result of the surgical implantation and maintenance of penile implants 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 (2011).  

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 no 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 appellant 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 claim of entitlement to compensation under 38 U.S.C.A. § 1151 for additional disabilities incurred as a result of the surgical implantation and maintenance of penile implants is dismissed.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs