Citation Nr: 1327188	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  12-19 102	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUES

1.  Entitlement to service connection for a low back disability.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Penny E. Gronbeck, Attorney


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from February 18, 1993 to April 23, 1993.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In September 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.


FINDINGS OF FACT

1. In August 2013, VA was notified that the Veteran died in June 2013.

2. At the time of his death, the Veteran had claims for VA benefits pending before the Board.


CONCLUSION OF LAW

The pending appeal for service connection for a low back disability and a TDIU due to service-connected disabilities is dismissed due to the Veteran's death.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012).



REASONS AND BASES FOR FINDINGS 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) (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).




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ORDER

The appeal is dismissed due to the Veteran's death.




______________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs