Citation Nr: 1312775	
Decision Date: 04/17/13    Archive Date: 05/02/13

DOCKET NO.  09-38 087	)	DATE
	)
	)

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


THE ISSUE

Entitlement to waiver of the recovery of overpayment of VA disability compensation in the amount of $88,543.26, to include the preliminary issue of the validity of the debt.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel

INTRODUCTION

The Veteran served on active duty from August 1966 to August 1969. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

In November 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is associated with the claims file. 

This case was previously before the Board in April 2011 when it was remanded for additional development.  The case has been returned to the Board for appellate consideration. 


FINDINGS OF FACT

The Veteran died on March [redacted], 2013, during the course of his appeal to the Board.


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 FINDINGS AND CONCLUSION

In an August 2008 decision, the RO denied the Veteran's claim of entitlement to a waiver of the recovery of overpayment of VA disability compensation in the amount of $88,543.26.  The Veteran filed a timely notice of disagreement and also filed a timely substantive appeal.  In November 2009, his claim was initially certified to the Board.  In April 2013, records which state that the Veteran died on March [redacted], 2013 were associated with the claims file.

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) (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 from which the claim originated (listed on the first page of this decision).  


ORDER

The appeal is dismissed.




____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs