Citation Nr: 1301608	
Decision Date: 01/15/13    Archive Date: 01/23/13

DOCKET NO.  12-07 021	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Lincoln, Nebraska


THE ISSUE

Entitlement to reimbursement or payment for the cost of private medical services incurred by the Veteran from April 10, 2011 to April 12, 2011 at St. Elizabeth Regional Medical Center in Lincoln, Nebraska.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESSES AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

J. Juliano, Associate Counsel
INTRODUCTION


The Veteran served on active duty from August 1967 to August 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2011 and August 2011 letter decisions of the VA medical center in Lincoln, Nebraska.

In June 2012, the Veteran testified at a videoconference Board hearing before the undersigned Chief Veterans Law Judge.  A transcript of the proceeding has been associated with the claims file.


FINDING OF FACT

On November 19, 2012, the Board was notified that the appellant died in October 2012.


CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of his claim for medical expense reimbursement. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012); cf. Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the appellant died during the pendency of his appeal.  As a matter of law, claimants' 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).  Therefore, 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 (2012).  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 (2012).

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 a request must be filed not later than one year after the date of the Veteran's death.  See 38 U.S.C. § 5121A (West Supp. 2012) .  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.



____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs