Citation Nr: 1327490	
Decision Date: 08/27/13    Archive Date: 09/05/13

DOCKET NO.  08-00 078A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel







INTRODUCTION

The Veteran served on active duty from June 1969 to April 1972.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision issued in August 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.

A review of the Veterans Benefits Management System does not reveal any additional documents pertinent to the present appeal.  Records contained in the Virtual VA paperless claims processing system indicate that the RO issued a rating decision in December 2012 which denied a claim for cause of the Veteran's death and an application for DIC benefits. 

The claim on appeal was pending at the time of the Veteran's death on May 2012.  In August 2012, VA received a VA Form 21-535, Application for Dependency and Indemnity Compensation (DIC) by Parents.  Service connection for cause of the Veteran's death was denied in a December 2012 rating decision.  The PTSD claim, however, was not adjudicated as a pending claim for accrued benefits purposes.

In December 2012, VA notified the surviving parent that a decision regarding accrued benefits has been deferred.  Thus, the Board finds that the issue of service connection for PTSD for accrued benefits has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over this matter, and it is therefore referred to the AOJ for appropriate action.

In reaching the following determination, we observe the following:  There is a certification of appeal listing accrued benefits as the issue on appeal.  The document is dated long before the death of the Veteran.  There is no documentation of a statement of the case to the appellant.  The December 2012 notification letter informs the claimant that accrued benefits have been denied on page 1 and deferred on page 2.  Additional action is needed and the issue of entitlement to accrued benefits is not appropriately before the Board.


FINDING OF FACT

In May 2012, VA was notified that the Veteran died in May 2012.



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); 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 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 Veteran'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.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs