Citation Nr: 1308871 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 12-11 354A ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether the Veteran's daughter, C.S., should be the Veteran's recognized fiduciary for Department of Veterans Affairs purposes. REPRESENTATION Appellant represented by: Katrina J. Eagle, Esq. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION This appeal was processed using the Virtual VA paperless claims processing system. The Board does further take note of the fact that there is an accompanying paper record of several claims folders, in addition to that comprised by the electronic "virtual" file in this case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2012). The Veteran served on active duty from January 1948 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Previously, through an October 2010 decision, the RO appointed a private banking company as the Veteran's recognized fiduciary for VA purposes, replacing the prior appointment in this capacity of the Veteran's daughter, C.S., also his attorney-in-fact under a durable power-of-attorney agreement. Thereafter, a December 2010 decision denied the Veteran's daughter's request for reinstatement as his VA fiduciary, and continued the fiduciary status of the bank assigned this duty. The Veteran brought the instant appeal (through documentation filed by his designated counsel in the matter) requesting the re-appointment of C.S. as his VA fiduciary. The instant matter as one of the appointment of a VA fiduciary is within the Board's appellate jurisdiction, inasmuch as it is a matter affecting the provision of VA benefits, and thus subject to review by the Board and appeal to the United States Court of Appeals for Veterans Claims (Court or Veterans Court). See Freeman v. Shinseki, 24 Vet. App. 404 (2011). See also VA Fast Letter 11-37 (Dec. 6, 2011) (prescribing adjudicatory procedures for processing of appeals involving selection of payees under VA's fiduciary program). During pendency of this case, the Veteran and C.S. twice sought relief from the Court in the form of a writ of mandamus that would have compelled the VA Secretary to dissolve the existing Federal fiduciary appointment for the Veteran and require the transfer of all of the Veteran's VA funds to C.S. as legal guardian for the Veteran. In July 2011, and again in May 2012, the Court denied the relief sought, determining that a disposition of this issue was reserved pending the ongoing appeal before the Board. Thereafter, during pendency of this appeal, the private banking company assigned VA fiduciary duties was discharged from this obligation by VA, and a new fiduciary, a private attorney, was ultimately appointed in November 2012. This revision in the appointment of a fiduciary while constituting a material change in factual circumstances, does not impact the merits of this appeal inasmuch as the case is being dismissed for lack of jurisdiction upon the death of the Veteran (subject to the additional provisions for claimant substitution that may be relevant, as indicated below). The Board further observes that the Veteran's attorney at one point raised the issue of the propriety of the RO's January 2011 "Misuse Determination" which found that C.S. had not properly accounted for a specified sum of funds disbursed from VA while she was still the original fiduciary, including requesting a hearing in this matter. At present, however, there is no predetermined means for considering such an issue within the realm of the Board's appellate discretion, particularly as there has never been a finalized decision or any administrative action ultimately taken in the matter (as a fact itself observed in the Court's initial July 2011 dismissal of mandamus jurisdiction). Nor was the issue ever appealed to the Board. Hence, it is not presently for appellate consideration. FINDING OF FACT On February 4, 2013, the Board was notified by the Veteran's designated attorney that the Veteran died in December 2012. 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 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 from which the claim originated (listed on the first page of this decision). ORDER The appeal is dismissed. DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs