Citation Nr: 1307064	
Decision Date: 03/01/13    Archive Date: 03/11/13

DOCKET NO.  11-21 960	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an initial evaluation in excess of 10 percent for a staph infection of the neck.


REPRESENTATION

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



ATTORNEY FOR THE BOARD

Sarah Richmond, Counsel



INTRODUCTION

The Veteran had active military service from June 1957 to April 1961.

This matter comes to the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted service connection for a staph infection of the back of the neck assigning a 10 percent rating.


FINDING OF FACT

In February 2013, the Board was notified by the RO that the Veteran died on February [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 during the pendency of the appeal.  As a matter of law, appellants' 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 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 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 from which the claim originated (listed on the first page of this decision).


ORDER

The appeal is dismissed.




____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs