Citation Nr: 1306354	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  11-02 477	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUE

Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for dysfunction of the frontal lobes of the hippocampus with neuropsychiatric damage.

REPRESENTATION

Veteran represented by:	New Hampshire State Veterans Council


WITNESSES AT HEARINGS ON APPEAL

The Veteran and R. O.


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1987 to May 1990 and from January 2004 to September 2004.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which denied entitlement to compensation under 38 U.S.C.A. § 1151 for mild dysfunction of the frontal lobes and moderate dysfunction of the hippocampus, claimed as neuropsychiatric damage.

The Veteran and his witness, R. O., testified at a hearing before an RO Decision Review Officer in November 2010.  The Veteran additionally testified at a hearing before the undersigned Veterans Law Judge in November 2011.  Transcripts of those hearings are of record.


FINDING OF FACT

In February 2013, the Board was notified that the Veteran had died on January [redacted], 2013.


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 FINDING AND CONCLUSION

Unfortunately, the Veteran died on January [redacted], 2013, during the pendency of this appeal.  As a matter of law, an appellants' claim does not survive his or her 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 Veteran'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.



		
Mark D. Hindin
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs