Citation Nr: 1328260	
Decision Date: 09/04/13    Archive Date: 09/10/13

DOCKET NO.  08-17 407	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E. Woodward Deutsch, Counsel


INTRODUCTION

The Veteran served on active duty from March 1952 to March 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, to which the claims file was temporarily brokered for adjudication.  Jurisdiction of the Veteran's case was later transferred to the RO in Roanoke, Virginia.  

In a June 2010 decision, the Board denied the Veteran's claim of entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD.  The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court).  In a February 2011 Order, the Court granted a January 2011 Joint Motion for Partial Remand, vacating and remanding the June 2010 decision of the Board.  The appeal was then returned to the Board, which issued a November 2011 Remand for development consistent with the terms of the Joint Motion and Court Order.  Following the completion of the requested development, the case was returned the Board for additional appellate action.  After eliciting an opinion from a health care professional in the Veterans Health Administration (VHA), the Board issued an April 2013 decision granting the Veteran's service connection claim.  Unfortunately, the Board has since learned of the Veteran's death, which necessitates the actions taken below.


FINDINGS OF FACT

1.  On April 12, 2013, the Board issued a decision which granted service connection for obstructive sleep apnea.

2.  The Board was notified in August 2013 that the Veteran had died on March [redacted], 2013.

3.  As the Veteran died during the course of the appeal, the April 12, 2013, decision was not in accord with due process, and the Board does not have jurisdiction to adjudicate the merits of the underlying claim.


CONCLUSIONS OF LAW

1.  The criteria for vacatur of the Board's April 12, 2013, decision have been met.  38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2012); 38 C.F.R. § 20.904 (2012).

2.  Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claim for service connection for obstructive sleep apnea.  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 CONCLUSIONS

I.  ORDER OF VACATUR

The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence.  38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.904. 

Regrettably, the Veteran died on March [redacted], 2013, prior to the Board decision that granted service connection for obstructive sleep apnea.  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).  Accordingly, the Board exceeded its jurisdiction by adjudicating the Veteran's obstructive sleep apnea claim and its April 12, 2013, decision must therefore be vacated.

II.  DISMISSAL

The Veteran died during the pendency of the appeal.  As noted previously, 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).  Therefore, this appeal has become moot due to 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 set forth in this 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 Roanoke RO.


ORDER

The Board's April 12, 2013, decision, which granted service connection for obstructive sleep apnea, is VACATED.

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


____________________________________________
S.C. KREMBS
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs