Citation Nr: 1324255	
Decision Date: 07/30/13    Archive Date: 08/07/13

DOCKET NO.  11-25 178	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to an evaluation in excess of 50 percent for major depression.

2.  Entitlement to a total disability rating due to individual unemployability (TDIU).  


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

D. Rogers, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Navy from February 1959 to April 1963. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which continued a 50 percent evaluation for major depression.


FINDINGS OF FACT

1.	The Veteran in this case served on active duty from February 1959 to April 1963.

2.	The record reflects that the Veteran passed away in March 2013.  


CONCLUSION OF LAW

Due to the death of the appellant, 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 (2008). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The record shows that the Veteran passed away in March 2013 during the pendency of this 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).  Thus, his appeal on the merits has become moot by virtue of his death 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.



		
DAVID L. WIGHT
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs