Citation Nr: 1309880	
Decision Date: 03/22/13    Archive Date: 04/01/13

DOCKET NO.  08-05 282	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder.

2.  Entitlement to service connection for congestive heart failure.

3.  Entitlement to service connection for hypertension.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel


INTRODUCTION

The Veteran served on active duty from March 1969 to February 1971.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from October 2006 and October 2008 rating decisions by the St. Louis, Missouri, Regional Office (RO).  

In an October 2011 decision, the Board denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  The remaining two claims of service connection were later certified on appeal by the RO in April 2012.  The Veteran died in June 2012, and by order dated in November 2012, the Court vacated the Board's October 2011 decision and dismissed the appeal for lack of jurisdiction.  


FINDING OF FACT

The claims file contains a certificate of death showing that the Veteran, who was the appellant in this matter, died in June 2012.  


CONCLUSION OF LAW

Because of the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of his claims.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran died during the pendency of his appeal to the Court, in June 2012.  The Veteran's attorney-representative notified the Court of the Veteran's death in September 2012.  In a November 2012 order, after receiving notice that the Veteran had died, the Court vacated the October 2011 Board decision, dismissed the appeal, and returned the case to the Board.  A copy of the Veteran's death certificate has been associated with the claims folder.  (The Veteran's death came before the Board had acted on the appeal of claims of service connection for congestive heart failure and hypertension.)

As a matter of law, veterans' 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 a 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 RO from which the claim originated (listed on the first page of this decision).  


ORDER

The Veteran's appeal is dismissed.  



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs