Citation Nr: 1220005 Decision Date: 06/07/12 Archive Date: 06/20/12 DOCKET NO. 08-27 630 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased rating for depressive disorder, rated 30 percent prior to March 18, 2009, and 50 percent from March 18, 2009. 2. Entitlement to service connection for diabetes mellitus, type II, claimed as secondary to service-connected disability. 3. Entitlement to service connection for coronary artery disease (heart disability), claimed as secondary to service-connected disability. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension, claimed as secondary to service-connected disability. 5. Entitlement to service connection for chronic disability manifested by anemia, claimed as secondary to service-connected disability. 6. Entitlement to service connection for obesity, claimed as secondary to service-connected disability. 7. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left shoulder disability, claimed as secondary to service-connected disability. 8. Entitlement to service connection for sleep apnea, claimed as secondary to service-connected disability. 9. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). 10. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The appellant had active service from September 1975 to August 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2007 (depressive disorder), November 2007 (diabetes mellitus, coronary artery disease, hypertension, anemia, obesity, left shoulder, sleep apnea), February 2010 (TDIU), and March 2011 (SMC - aid and attendance) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. During the pendency of the appeal, a rating decision in September 2009 increased the rating for service-connected depressive disorder from 30 percent to 50 percent, effective from March 18, 2009. FINDING OF FACT On May 30, 2012, the Board was notified by Social Security Administration electronic data that the appellant died on May [redacted], 2012. CONCLUSION OF LAW Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of these claims at this time. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (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 Unfortunately, the appellant 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 (2011). 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 claims 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 regional office (RO) from which the claim originated (listed on the first page of this decision). ORDER The appeal is dismissed. U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs