Citation Nr: 1311026	
Decision Date: 04/03/13    Archive Date: 04/19/13

DOCKET NO.  11-29 956	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for pulmonary asbestosis.

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Crohe, Counsel



INTRODUCTION

The Veteran served on active duty from October 1944 to June 1946. 

These matters come before the Board of Veterans' Appeals (Board) from multiple rating decisions issued by Department of Veterans' Affairs (VA) Regional Offices (ROs) in Waco, Texas  and Cleveland Ohio. However, jurisdiction has remained with the Waco, Texas RO. 

In a rating decisions issued by the Waco, Texas RO in March 2009 and the Cleveland, Ohio RO in December 2010, service connection for pulmonary asbestosis and bilateral hearing loss remained denied because new and material evidence had not been submitted.  

In November 2011, the Board requested a VA medical expert opinion to determined whether the Veteran's chronic obstructive pulmonary disease (COPD) and pulmonary asbestosis were related to the Veteran's military service, to include the Veteran's pneumonia during service and/pr exposure to asbestos in service.  

Unfortunately, during the pendency of this appeal, the Veteran died. Accordingly, this appeal must be dismissed.

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).


FINDINGS OF FACT

In March 2013, the Board received notification that the Veteran had died.





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 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.  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 Veteran 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



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs