Citation Nr: 1312240	
Decision Date: 04/12/13    Archive Date: 04/19/13

DOCKET NO.  09-49 312	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. Schechner, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from January 1974 to December 1977.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the St. Petersburg, Florida RO.  In his December 2009 substantive appeal, the Veteran requested a hearing before the Board; he failed to report for such hearing scheduled in May 2012.  In July 2012, the Board remanded the matter for additional development.


FINDING OF FACT

In April 2013, the Board received notice that the Veteran died on March [redacted], 2013.  


CONCLUSION OF LAW

Due to the death of the appellant, 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, who was the appellant in this case, 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); 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.

The Board's dismissal of the 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).  Under 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 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 VARO from which the claim originated (listed on the first page of this decision).


ORDER

The appeal is dismissed.



____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs