Citation Nr: 1323457	
Decision Date: 07/23/13    Archive Date: 08/01/13

DOCKET NO.  10-00 172	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for a left knee disorder, to include as secondary to service-connected disability.

2.  Entitlement to service connection for a right hip disorder, to include as secondary to service-connected disability.

3.  Entitlement to service connection for a left hip disorder, to include as secondary to service-connected disability.

4.  Whether new and material evidence has been received to reopen a claim of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a foot laceration.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. M. Celli, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1941 to November 1945 and from December 1946 to November 1949.  He was in receipt of the Silver Star and Combat Infantryman Badge from his first period of active duty service, which denote his participation in combat.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  

In July 2011, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge.  A transcript of that hearing is of record.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Board has been notified that the Veteran died in May 2013.  



CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claims 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 (2009); 38 U.S.C.A. § 5121A (West Supp. 2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran 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 Veteran 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 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 Veteran's death.  See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (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 RO from which the claim originated (listed on the first page of this decision).  


ORDER

Entitlement to service connection for a left knee disorder, to include as secondary to service-connected disability, is dismissed.

Entitlement to service connection for a right hip disorder, to include as secondary to service-connected disability, is dismissed.

Entitlement to service connection for a left hip disorder, to include as secondary to service-connected disability, is dismissed.

Whether new and material evidence has been received to reopen a claim of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a foot laceration is dismissed.



____________________________________________
RYAN T. KESSEL
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs