Citation Nr: 1237217	
Decision Date: 10/26/12    Archive Date: 11/09/12

DOCKET NO.  08-12 985	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for bilateral tinnitus.

3.  Entitlement to service connection for sinusitis.

4.  Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L.M. Yasui, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1971 to October 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

In February 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A copy of the hearing transcript is associated with the claims file.

Historically, in a May 2011decision, the Board dismissed the issues of entitlement to service connection for a kidney disorder and service connection for epididymitis, which were withdrawn by the Veteran in a written statement.  The Board also denied entitlement to service connection for a bilateral wrist disability, ganglion cysts of the bilateral wrists, peripheral neuropathy, and a lung disability to include asbestosis.  The Veteran did not appeal these issues to the United States Court of Appeals for Veterans Claims (Court) and they are not before the Board at this time.

In the May 2011 decision, the Board also remanded the issues of entitlement to service connection for bilateral tinnitus, sinusitis, and sleep apnea for further development.

The Veteran appealed the Board's decision, solely pertaining to the denial of his claim of service connection for bilateral hearing loss, to the Court.  In March 2012, the Court vacated and remanded the claim of service connection for bilateral hearing loss pursuant to a Joint Motion for Remand (JMR) for further action.
FINDING OF FACT

In October 2012, the Board was notified that the Veteran died in May 2012.


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

ORDER

The appeal is dismissed.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs