Citation Nr: 1329420	
Decision Date: 09/13/13    Archive Date: 09/20/13

DOCKET NO.  12-02 666	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, 
New York


THE ISSUE

Whether new and material evidence has been received to 
reopen a claim for service connection for a chronic back 
strain.


REPRESENTATION

Appellant represented by:	Jaya A. Shurtliff, Attorney-
at-Law


ATTORNEY FOR THE BOARD

S. M. Kreitlow





INTRODUCTION

The Veteran had active military service from March 1990 to 
March 1993.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a July 2010 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Buffalo, New York.

A video conference hearing before the Board was scheduled 
for July 18, 2012.  The Veteran, however, failed to appear 
and did not request that this hearing be rescheduled.


FINDING OF FACT

On September 6, 2013, the Board was notified by the Social 
Security Administration that the Veteran died on June [redacted], 
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). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Unfortunately, the Veteran died on June [redacted], 2013, 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).  


ORDER

The appeal is dismissed.




		
MICHAEL MARTIN
	Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs