Citation Nr: 1305445	
Decision Date: 02/14/13    Archive Date: 02/21/13

DOCKET NO.  12-31 821	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida



THE ISSUE

Whether new and material evidence had been presented to reopen the claim of service connection for retinosis pigmentosa and cataracts in each eye. 



REPRESENTATION

Veteran represented by:	Peter J. Meadows, Esq.



ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel



INTRODUCTION

The Veteran served on active duty from December 1969 to October 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2011 of a Department of Veterans Affairs (VA) Regional Office (RO).


FINDING OF FACT

According to the records of the Social Security Administration, the Veteran died in November 2012 while his appeal of whether new and material evidence had been presented to reopen the claim of service connection for retinosis pigmentosa and cataracts in each eye was pending before the Board.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the new and material evidence claim.  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

In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted as proof of death. 38 C.F.R. § 3.211(g).





According to the records of the Social Security Administration, a Federal agency, the Veteran died in November 2012, while his appeal of whether new and material evidence had been presented to reopen the claim of service connection for retinosis pigmentosa and cataracts in each eye was pending before the Board and before the Board promulgated a decision on the appeal.

In the absence of evidence to the contrary, the Board accepts the finding by the Social Security Administration as proof of the Veteran's death during the pendency of the appeal and before the Board promulgated a final decision.

As the Veteran died during the pendency of the appeal, as a matter of law, the appeal does not survive the Veteran's death, and the appeal must be dismissed for lack of jurisdiction. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302(2011); Landicho v. Brown, 7 Vet. App. 42, 53- 54 (1994).

The Board's dismissal of the appeal does not affect the right of an eligible person to file the 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 Veteran's death.  See Veterans Benefits Improvements Act of 2008, Pub. L. No.110- 3889, § 212, 112 Stat. 4145, 4151 (2009) (creating new 38 U.S.C.A. § 5121A, substitution in case of death of a claimant who dies on or as of 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 38 U.S.C.A. § 5121(a).

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 Veteran 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 appeal of whether new and material evidence had been presented to reopen the claim of service connection for retinosis pigmentosa and cataracts in each eye is dismissed.


		
George E. Guido Jr.
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs