Citation Nr: 1307435	
Decision Date: 03/05/13    Archive Date: 03/11/13

DOCKET NO.  11-23 927	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an effective date earlier than August 3, 2010, for the grant of service connection for adjustment disorder with depressed mood.  

2.  Entitlement to an effective date earlier than January 9, 2007, for the grant of service connection for coronary artery disease with dilated cardiomyopathy status post-automic implantable cardioverter defibrillator.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Counsel



INTRODUCTION

The Veteran served on active duty from August 1967 to July 1970.

This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions dated in November 2010 and June 2011 by the Department of Veterans Affairs (VA) Regional Office (RO). 


FINDINGS OF FACT

1.  In February 2013, VA was notified that the Veteran died in December 2012.

2.  At the time of his death, the Veteran had claims for VA benefits pending before the Board.


CONCLUSIONS OF LAW

1.  At this time, due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the appeal for entitlement to an effective date earlier than August 3, 2010, for the grant of service connection of adjustment disorder with depressed mood.  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). 

2.  At this time, due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the appeal for entitlement to an effective date earlier than January 9, 2007, for the grant of service connection for coronary artery disease with dilated cardiomyopathy status post-automatic implantable cardioverter defibrillator.  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 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 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 claims 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 VA regional office (RO) from which the claims originated (listed on the first page of this decision). 



ORDER

The appeal is dismissed due to the Veteran's death.




____________________________________________
K.A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals





Department of Veterans Affairs