Citation Nr: 1317082	
Decision Date: 05/24/13    Archive Date: 05/31/13

DOCKET NO.  09-46 369	)	DATE
	)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Whether new and material evidence has been presented to reopen a claim of service connection for a psychiatric disorder.

2.  Whether new and material evidence has been presented to reopen a claim of service connection for a back disability. 

REPRESENTATION

Veteran represented by:	Heather E. Vanhoose, Attorney at Law

WITNESS AT HEARING ON APPEAL

Veteran 
ATTORNEY FOR THE BOARD

M. Taylor, Counsel





INTRODUCTION

The Veteran, who is the appellant, served on active duty from January 1973 to November 1974 and from August 1980 to August 1983.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2008 of a Department of Veterans Affairs (VA) Regional Office.  


FINDING OF FACT

According to the records of the Social Security Administration, the Veteran died on April [redacted], 2013, while his appeal was pending before the Board.


CONCLUSIONS OF LAW

1.  Due to the death of the Veteran, the Board has no jurisdiction to review the appeal of whether new and material evidence has been presented to reopen a claim of service connection for a psychiatric disorder.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012).  

1.  Due to the death of the Veteran, the Board has no jurisdiction to review the appeal of whether new and material evidence has been presented to reopen a claim of service connection for a back disability.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012). 







REASONS AND BASES FOR FINDING AND CONCLUSIONS

In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted as proof of death.  38 C.F.R. § 3.211(g).

According to the records of the Social Security Administration, a Federal agency, the Veteran died on April [redacted], 2013, while his appeal was pending and before the Board promulgated a decision on the appeal.

In the absence of evidence to the contrary, the Board accepts the finding by the Social Security Administration as proof of the Veteran's death during the pendency of the appeal and before the Board promulgated a final decision.

As the Veteran died during the pendency of the appeal, as a matter of law, the appeal does not survive the Veteran's death, and the appeal must be dismissed for lack of jurisdiction.  38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302 (2012); Landicho v. Brown, 7 Vet. App. 42, 53-54 (1994).

The Board's dismissal of the 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.  Veterans Benefits Improvements Act of 2008, Pub. L. No.110- 3889, § 212, 112 Stat. 4145, 4151 (2009) (creating new 38 U.S.C.A. § 5121A, substitution in case of death of a claimant who dies on or as of 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 38 U.S.C.A. § 5121(a).



The Secretary of VA 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 Veteran should file a request for substitution with the VA regional office from which the claim originated, which is listed on the first page of this decision. 


ORDER

The appeal of whether new and material evidence has been presented to reopen a claim of service connection for a psychiatric disorder is dismissed.

The appeal of whether new and material evidence has been presented to reopen a claim of service connection for a back disability is dismissed.



		
George E. Guido Jr.
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs