Citation Nr: 1317016	
Decision Date: 05/23/13    Archive Date: 05/31/13

DOCKET NO.  10-29 951	)	DATE
	)


On appeal from the
Department of Veterans Affairs Medical Center in Salem, Virginia


THE ISSUE

Entitlement to a Department of Veterans Affairs fee basis outpatient treatment authorization identification card. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel



INTRODUCTION

The Veteran served on active duty from February 1968 to March 1971. 

This matter came to the Board of Veterans' Appeals (Board) on appeal from a May 2010 determination of the Department of Veterans Affairs (VA) Veterans Integrated Service Network (VISN) 6 Centralized Fee Unit in Salem, Virginia, which cancelled the Veteran's fee basis identification card, effective June 30, 2010.  In December 2012, the claim was remanded to afford him a requested hearing.


FINDINGS OF FACT

On May 2013, the Board was notified that the Veteran had died on April [redacted], 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 Veteran died during the pendency of the appeal.  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).  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) or the VA Medical Center (VAMC) from which the claim originated (listed on the first page of this decision).  


ORDER

The appeal is dismissed.



		
Mark D. Hindin
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs