Citation Nr: 1319098	
Decision Date: 06/12/13    Archive Date: 06/21/13

DOCKET NO.  12-31 817	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Whether the appellant's claimed medical expenses for calendar year 2009 were timely filed for the purposes of receiving an adjustment to non service-connected death pension benefits.


ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1943 to May 1946.  The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  In that decision, the RO determined that the appellant's claimed medical expenses for calendar year 2009 were not timely filed for the purposes of receiving an adjustment to non service-connected death pension benefits.

In May 2013, the Acting Chairman of the Board granted a motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the appellant's claim.  The documents in this file have been reviewed and considered as part of this appeal.


FINDING OF FACT

In April 2013, the RO was notified that the appellant died in March 2013.


CONCLUSION OF LAW

Due to the death of the appellant, 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. §§ 20.1106, 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 FINDING AND CONCLUSION

Unfortunately, the appellant 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 appellant and must be dismissed for lack of jurisdiction.  See 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302.

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 appellant. 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 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.


		
J. A. MARKEY
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs