Citation Nr: 1329026	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  08-16 072	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to compensation under 38 U.S.C. §1151 for fractured right knee patellar.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

Veteran and Sibling


ATTORNEY FOR THE BOARD

Tabitha G. Macko, Counsel

INTRODUCTION

The Veteran served on active duty from October 1976 to October 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  The Veteran subsequently relocated to the jurisdiction of the RO in Cleveland, Ohio.    

The Veteran and his brother testified before the undersigned in May 2013 from the Cleveland, Ohio RO via video-teleconference.  A transcript has been incorporated into the record.    


FINDINGS OF FACT

On September 4, 2013, prior to adjudication, the Board was notified that the Veteran died in June 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 (2013); 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

In this case, the Veteran died in June 2013 during the pendency of the appeal.  On September 4, 2013, prior to adjudication by the Board, the Board was notified of the Veteran's death.  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 (2013).

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 (2013).  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 Veteran for purposes of processing the claim to completion; however, 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 provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under"  38 U.S.C.A. § 5121(a).

The VA 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 Veteran 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.



____________________________________________
PAUL SORISIO
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs