Citation Nr: 1314599	
Decision Date: 05/03/13    Archive Date: 05/15/13

DOCKET NO.  09-23 122A	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for service-connected posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Michael Holincheck, Counsel




INTRODUCTION

The Veteran served on active duty from April 1968 to February 1971 and from October 1977 to October 1996.

This matter comes to the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.


FINDINGS OF FACT

1.  The Veteran had active service from April 1968 to February 1971 and from October 1977 to October 1996.

2.  In April 2013, the Board received notice that the Veteran had died in February 2013.  


CONCLUSION OF LAW

Because of the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of his claims.  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 April 2013, the Board received notice that the Veteran had died in February 2013.  

Unfortunately, the Veteran's appeal before the Board had not been decided by the time he died.  As a matter of law, veterans' 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).  The appeal must therefore 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 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 RO listed on the first page of this decision.  


ORDER

The appeal is dismissed.



		
M. C. GRAHAM
	Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs