Citation Nr: 1309875	
Decision Date: 03/22/13    Archive Date: 04/01/13

DOCKET NO.  09-03 400A	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for a back disability.

2.  Entitlement to service connection for residuals of a stroke.  

REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and J.B.

ATTORNEY FOR THE BOARD

L. J. Wells-Green, Counsel




INTRODUCTION

The Veteran served on active duty from October 1950 to December 1953 and from September 1954 to June 1971.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2008 of a Department of Veterans Affairs (VA) Regional Office (RO).  

In May 2009, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the record.

In August 2010 and in September 2012, the Board remanded the case for further development.  



FINDING OF FACT

In February 2013, VA acknowledged in a letter to the surviving spouse the Veteran's death and the Veteran's obituary was published in the community where he died.












CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claims of service connection for a back disability and residuals of a stroke.   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

According to a copy of a public record from Columbia, South Carolina, where death occurred, the Veteran died in February 2013 while his appeal on the claims of service connection for a back disability and for residuals of a stroke was pending and before the Board promulgated a decision on the appeal.

In accordance with 38 C.F.R. § 3.211(a), a copy of a public record of the community where the Veteran died is acceptable as proof of death.  As the Veteran died during the pendency of the appeal, as a matter of law, the appeal does not survive the Veteran's death, and the appeal must be dismissed for lack of jurisdiction.  38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302 (2012); Landicho v. Brown, 7 Vet. App. 42, 53- 54 (1994).

The Board's dismissal of the appeal does not affect the right of an eligible person to file the 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 Improvements Act of 2008, Pub. L. No.110- 3889, § 212, 112 Stat. 4145, 4151 (2009) (creating new 38 U.S.C.A. § 5121A, substitution in case of death of a claimant who dies on or as of 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 38 U.S.C.A. § 5121(a).

The Secretary of VA 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 Veteran 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 of the claims of service connection for a back disability and for residuals of a stroke is dismissed. 


		
George E. Guido Jr.
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs