Citation Nr: 1308467	
Decision Date: 03/13/13    Archive Date: 03/20/13

DOCKET NO.  12-01 124	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A.J. Turnipseed, Counsel


INTRODUCTION

The Veteran served on active duty from May 1976 to May 1979.  

This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above, which denied entitlement to TDIU.  

In April 2012, the Veteran testified before the undersigned at a Travel Board hearing.  A transcript of the hearing is associated with the claims file.  


FINDING OF FACT

In February 2013, the Board was notified that the Veteran died in November 2012.  


CONCLUSION OF LAW

Because of the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claim associated with this appeal.  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); 38 U.S.C.A. § 5121A (West Supp. 2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In a September 2009 rating decision, the RO denied entitlement to TDIU, among other issues.  The Veteran filed a timely notice of disagreement and substantive appeal with respect to the denial of TDIU in the September 2009 rating decision and the issue was certified to the Board for adjudication.  

As noted, the Veteran testified before the undersigned at a Travel Board hearing in April 2012.  

Unfortunately, however, in February 2013, the Board was notified by the Social Security Administration that the Veteran died on November [redacted], 2012.  

As a matter of law, veterans' claims do not survive their death absent proper substitution.  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).  Therefore, 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); 38 C.F.R. § 20.1302.

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.  See 38 C.F.R. § 20.1106 (2012).  

Indeed, 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 regional office (RO) from which the claim originated (listed on the first page of this decision). 

      (CONTINUED ON NEXT PAGE)






ORDER

The appeal is dismissed.  



____________________________________________
TANYA A. SMITH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs