Citation Nr: 1320098	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  12-22 997	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Pension Management Center in St. Paul, Minnesota


THE ISSUE

Whether the Veteran's net worth precludes entitlement to nonservice connected pension benefits at a rate based upon a need for aid and attendance.


REPRESENTATION

Appellant represented by: Fateh S. Dhillon, Agent 


WITNESSES AT HEARING ON APPEAL

Appellant's son 


ATTORNEY FOR THE BOARD

Mary E. Rude, Associate Counsel

INTRODUCTION


The Veteran served on active duty from December 1941 to October 1945.  He died in April 2013.

This matter comes to the Board of Veterans' Appeals  (Board) on appeal from a letter decision of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota.  The case was certified to the Board by the Los Angeles, California Regional Office (RO). 

The Veteran's son presented testimony before the undersigned at an April 2013 video conference hearing held with the San Diego, California RO.  At that time a discussion ensued regarding the right of the Veteran's surviving spouse to be substituted as the appellant for purposes of processing the claim to completion.  To date, she has not filed an application to do so, however, she retains that right for one year after the Veteran's death.  Any such an application should be filed with the Pension Management Center in St. Paul, Minnesota.  


FINDING OF FACT

In April 2013, the Board was informed that the Veteran died in April 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. § 20.1302  (2012); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2012). 



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) (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.



_________________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs