Citation Nr: 1316758	
Decision Date: 05/22/13    Archive Date: 05/31/13

DOCKET NO.  00-19 321	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to compensation under 38 U.S.C.A. § 1151 for gastrointestinal disability due to treatment provided and medications prescribed by VA.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran had active service from April 1945 to September 1948.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.

The Board remanded this claim in September 2005 and August 2008; it also obtained a VHA opinion in September 2006.  The Board then denied the Veteran's claim in a December 2009 decision.  Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In a February 2012 Memorandum Decision, the Court vacated the December 2009 decision as to such issue.  The issue then returned to the Board for further consideration.  Most recently, the Board issued a request for a medical expert opinion in February 2013, which VA received in April 2013.

In May 2003, the Veteran testified at a hearing at the RO before a Decision Review Officer (DRO).  In September 2009, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge.  Transcripts of the hearings have been associated with the claims file.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. In May 2013, VA was notified that the Veteran died in December 2011.

2. At the time of his death, the Veteran had a claim for VA benefits pending before the Board.


CONCLUSION OF LAW

The pending appeal for compensation under 38 U.S.C.A. § 1151 for gastrointestinal disability due to treatment provided and medications prescribed by VA is dismissed due to the Veteran's death.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. 
§ 20.1302 (2012).


REASONS AND BASES FOR FINDINGS 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 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 (RO) from which the claim originated (listed on the first page of this decision).


ORDER

The appeal is dismissed due to the Veteran's death.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs