Citation Nr: 1322509	
Decision Date: 07/15/13    Archive Date: 07/24/13

DOCKET NO.  05-06 494	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to a rating in excess of 20 percent for service-connected diabetes mellitus, to include a separate compensable rating for diabetic nephropathy.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel


INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in November 2011, which granted a joint motion for remand from a November 2010 Board decision and remanded the issue on appeal for additional development.  The appeal arose from a June 2004 rating decision by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA).  The Board remanded the issue for additional development in June 2012 and February 2013.  

The Veteran testified at a video conference hearing in July 2007 before the undersigned Acting Veterans Law Judge.  A copy of the transcript of that hearing is of record.  


FINDINGS OF FACT

1.	The Veteran in this case served on active duty from August 1968 to August 1970. 

2.	Records show the Department of Veterans Affairs (VA) was notified that the appellant died in June 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 (2008). 


REASONS AND BASES FOR FINDINGS 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.



		
TRESA M. SCHLECHT
Acting 	Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs