Citation Nr: 1301658	
Decision Date: 01/15/13    Archive Date: 01/23/13

DOCKET NO.  11-01 456	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for skin cancer.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C.L. Krasinski, Counsel


INTRODUCTION

The Veteran had active duty service from February 1958 to November 1960.

These matters come before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied the Veteran's claim for service connection for skin cancer.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The Veteran testified before the undersigned at an August 2011 RO (Travel Board) hearing.  A hearing transcript has been associated with the claims file.

The Board notes that a representative from the Arkansas Department of Veterans Affairs represented the Veteran during the August 2011 hearing.  However, the claims file contains a completed Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22) appointing Veterans of Foreign Wars of the United States as the Veteran's representative.  There is no indication in the claims file that this appointment had been revoked.  The Board is therefore recognizing the Veterans of Foreign Wars of the United States as the Veteran's current representative.

The Board remanded the case to the RO for additional development of the record in April 2012.  



FINDINGS OF FACT

1.  The Veteran served on active duty from February 1958 to November 1960.  

2.  On December 6, 2012, prior to promulgation of a decision, the Board was notified that the Veteran had died on November [redacted], 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 (2012); 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 in this case died during the pendency of the appeal.  As a matter of law, an appellant's claim does not survive his death.  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 (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 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 RO where the claim originated.    


ORDER

The appeal is dismissed.



____________________________________________
ROBERT O'BRIEN
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs