Citation Nr: 1318794 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 10-18 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant's daughter ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from July 1941 to February 1945. He died in December 1991. The appellant was the Veteran's widow. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 1992 rating decision of the Washington, D.C, Regional Office which denied service connection for the cause of the Veteran's death. In September 2010, a Board hearing before the undersigned Veterans Law Judge was held. Although the presence of the appellant at the Board hearing was precluded by physical and mental impairment, the Board permitted the hearing in order to allow the appellant's representative to present argument in support of the appellant's claim. During the hearing, the appellant's daughter was allowed to testify at length, which testimony also set forth varous theories as to the cause of the Veteran's death that triggered further development action by the Board to comply with the duty to assist. See 38 U.S.C.A. § 5103(A)(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012). A hearing transcript was prepared and incorporated into the record. In light of the appellant's advanced age at the time, in November 2010, the Board advanced the appellant's appeal on the docket on its own motion. In December 2010, the Board remanded the appellant's appeal to the Baltimore, Maryland, Regional Office (RO) to comply with the duty to assist an appellant by providing a medical opinion regarding the causes of the Veteran's death (required by the additional evidence received suggesting various possible etiologies of death) and for due process readjudication of the claim on the merits (rather than as a claim to reopen). In October 2011, the Board again remanded the appellant's appeal to the RO to insure adequate medical opinions were provided that contained a rationale. As this effort was unsuccessful in obtaining valid medical opinions, in November 2012, the Board requested an opinion from a Veterans Health Administration (VHA) medical expert in internal medicine. In March 2013, the requested VHA opinion was incorporated into the record. In April 2013, the appellant and representative were provided with a copy of the VHA opinion. The Board has reviewed both the physical claims files and the "Virtual VA" file so as to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran had active service from July 1941 to February 1945. 2. The appellant is the Veteran's widow. 3. On May 23, 2013, prior to merits adjudication, the Board was notified that the appellant had died on April [redacted], 2013. CONCLUSION OF LAW In light of the appellant's death, the Board has no jurisdiction to adjudicate the merits of appellant's 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 this appeal on April [redacted], 2013. As a matter of law, appellants' claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, and 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 appellant's death; therefore, it 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 is "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 (Baltimore, Maryland). ORDER The appeal is dismissed. J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs