Citation Nr: 1309964	
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO.  10-44 458	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

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

REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

H. Hoeft, Counsel


INTRODUCTION

The Veteran served on active duty from March 1964 to March 1967.  He died in October 2012. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran submitted a timely Notice of Disagreement in December 2009; a Statement of the Case was issued in October 2010; and in October 2010, the Veteran perfected his appeal to the Board. 

He presented sworn testimony in support of his claim during a hearing with the undersigned Veterans Law Judge in June 2011. 


FINDINGS OF FACT

In March 2013, the Board was notified that the Veteran died in October 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 FINDINGS 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 regional office (RO) from which the claim originated (listed on the first page of this decision).  


ORDER

The appeal is dismissed.


____________________________________________
DEBORAH W. SINGLETON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs