Citation Nr: 1308025	
Decision Date: 03/11/13    Archive Date: 03/20/13

DOCKET NO.  11-00 418	)	DATE
	)
 )

On appeal from the
Department of Veterans Affairs Medical Center in Canandaigua, New York


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Alice Hyde Medical Center from May 9, 2009 to May 14, 2009.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

April Maddox, Counsel

INTRODUCTION

The Veteran (also referred to herein as 'the appellant') served on active duty from September 1966 to January 1972.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 administrative decision issued by the Department of Veterans Affairs (VA) Medical Center in Canandaigua, New York.

In June 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge via video-conference.  A copy of the hearing transcript is of record.     


FINDING OF FACT

Per VA notification received in March 2013, the Board was informed that the Veteran died on February [redacted], 2013, as verified by the Social Security Administration.


CONCLUSION OF LAW

Due to the death of the appellant, 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 VA Medical Center from which the claim originated (listed on the first page of this decision).  


ORDER

The appeal is dismissed.



		
A. JAEGER
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs