Citation Nr: 1328061	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  09-24 002	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for a right shoulder disability. 


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. M. Ames, Counsel


INTRODUCTION

The Veteran had active service from November 1982 to November 1985.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  

The Veteran testified at a hearing in November 2011 before the undersigned.  A copy of the transcript has been associated with the claims file.

In a January 2012 decision, the Board dismissed the Veteran's claims for service connection for bilateral hearing loss and tinnitus, and remanded the issues of service connection for a right knee disability, a right eyebrow scar, and a right shoulder disability for further development.  In a May 2013 rating decision, the Appeals Management Center (AMC) granted the Veteran's claims for service connection for a right knee disability and a right eyebrow scar.  Therefore they are no longer before the Board.  

A review of the Virtual VA paperless claims processing system reveals additional VA treatment records through 2012.  In the May 2013 Supplemental Statement of the Case, the RO stated that the Veteran's claim was considered based on all evidence of record.  Further, the Veteran's claim is being dismissed.  

The issue of whether the Veteran's surviving spouse may be substituted for the Veteran with regard to the claim that was pending at the time of his death was raised by the record in her August 2013 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  See VBA Fast Letter 10-30 (Aug. 10, 2010).  Additionally, the spouse's claims for accrued benefits, a one-time month of death payment, and burial benefits were also raised by the record in her August 2013 statement, and are referred to the AOJ for appropriate action.  


FINDING OF FACT

In August 2013, the appellant's representative notified the Board that the Veteran died in July 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); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008); 38 U.S.C.A. § 5121A (West 2002 and Supp. 2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, veterans' 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 RO from which the claim originated (listed on the first page of this decision).  As noted in the Introduction above, the Board has referred the Veteran's surviving spouse's August 2013 request for substitution to the RO.  


ORDER

The appeal is dismissed.  



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs