Citation Nr: 1326891	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  11-27 915	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for pulmonary embolism.  



REPRESENTATION

Appellant represented by:	Marc Whitehead, Attorney at Law


ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel



INTRODUCTION

The Veteran served on active duty from May 5, 1975 to June 20, 1975.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO) .  


FINDING OF FACT

While the Veteran's appeal was pending at the Board, and prior to the issuance of a final decision, the Board was notified that the Veteran had died on July [redacted], 2013.  


CONCLUSION OF LAW

Due to the death of the Veteran, 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).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran died during the pendency of the appeal.  Evidence of record indicates that a final notice of death was received on July 13, 2013.  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 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. . . ."  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 Muskogee, Oklahoma RO.  

Neither the physical nor Virtual VA claims file reflects that the Veteran's spouse has been notified of the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion, or that such a request has been made or granted in this case. 


ORDER

The appeal is dismissed.



		
JOY A. MCDONALD
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs