Citation Nr: 1316262	
Decision Date: 05/17/13    Archive Date: 05/29/13

DOCKET NO.  10-00 372	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for a skin rash, to include as due to exposure to Agent Orange.  

2.  Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel


INTRODUCTION

The Veteran served on active duty from August 1967 to April 1970.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Newark, New Jersey Department of Veterans Affairs (VA) Regional Office (RO), in which the RO awarded the Veteran service connection for diabetes mellitus, type II.  The Veteran perfected a timely appeal with respect to this issue.  In a November 2009 rating decision, the RO denied the Veteran's claim for service connection for a skin rash, to include as due to exposure to Agent Orange.  The Veteran initiated an appeal on this claim by filing a timely notice of disagreement (NOD) in December 2009, thereby conferring jurisdiction over this issue to the Board.  A statement of the case (SOC) was not issued with respect to this matter and therefore there was no opportunity for the Veteran to perfect an appeal by filing a timely substantive appeal on this issue.  

A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal.  These records include VA medical records.  


FINDINGS OF FACT

1.	The Veteran in this case served on active duty from August 1967 to April 1970. 

2.	On May 6, 2013 the Board was notified by an inquiry into the Social Security Administration (SSA) information, that the Veteran died in April 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 FINDINGS AND CONCLUSION

Unfortunately, the appellant 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) (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 regional office (RO) from which the claim originated (listed on the first page of this decision).  


ORDER

The appeal is dismissed.




		
KELLI A. KORDICH
	Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs