Citation Nr: 1316440	
Decision Date: 05/20/13    Archive Date: 05/29/13

DOCKET NO.  11-03 466	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to a rating in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD).

2.  Entitlement to a total disability rating based on individual unemployability by reason of service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Brame Perry Morrison, Jr., Attorney


ATTORNEY FOR THE BOARD

G. E. Wilkerson, Associate Counsel



INTRODUCTION

The Veteran served on active duty from February 2002 to March 2004.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the RO.


FINDING OF FACT

1.  The Veteran in this case served on active duty from February 2002 to March 2004.  

2.  In May 2013, the Board was notified that the Veteran died in March 2013.


CONCLUSION OF LAW

Due to the Veteran's death, the Board has no jurisdiction to adjudicate the merits of the claims on appeal. 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

The Veteran unfortunately died during the pendency of this 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). 

The merits of this appeal have become moot by virtue of the Veteran's death 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 a derivative claim brought by any of the Veteran's survivors.  38 C.F.R. § 20.1106. 

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 claims originated (listed on the first page of this decision).


ORDER

The appeal is dismissed.


____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge
 Board of Veterans' Appeals

Department of Veterans Affairs