Citation Nr: 1314385	
Decision Date: 05/01/13    Archive Date: 05/15/13

DOCKET NO.  08-16 246	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for an acquired psychiatric disability, to include a traumatic brain injury.  


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

R. Giannecchini, Counsel





INTRODUCTION

The Veteran had active military service from December 1970 to September 1972.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal following a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  Jurisdiction over the Veteran's claims file currently resides with the RO in Phoenix, Arizona.  

In a March 2012 decision, the Board remanded the Veteran's claim on appeal to the Appeals Management Center (AMC) for additional development.  Following action by the AMC, as noted in a November 2012 supplemental statement of the case (SSOC), the Veteran's claims file was returned to the Board later in November 2012 for further appellate review.   


FINDING OF FACT

In April 2013, the Board was notified that the Veteran had died in March 2013.  


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 FINDING 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) (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 Veteran for purposes of processing the 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 regional office (RO) from which the claim originated (listed on the first page of this decision).  



(CONTINUED ON NEXT PAGE)


ORDER

The appeal is dismissed.



		
JAMES L. MARCH
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs