Citation Nr: 1329624	
Decision Date: 09/16/13    Archive Date: 09/20/13

DOCKET NO.  09-30 429	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Fort 
Harrison, Montana


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for 
epiphysitis of the lumbar spine.

2.  Entitlement to service connection for a left leg 
disorder, to include as secondary to epiphysitis of the 
lumbar spine.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran 




ATTORNEY FOR THE BOARD

D. Johnson, Counsel


INTRODUCTION

The Veteran served on active duty from April 1968 to 
December 1970.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of a November 2008 rating decision of a Department 
of Veterans Affairs (VA) Regional Office (RO). 

The Veteran testified before the undersigned Veterans Law 
Judge at a videoconference hearing held in January 2010.  A 
transcript of the hearing is of record.

The appeal was previously before the Board and was remanded 
for additional development in September 2012.


FINDING OF FACT

According to the records of the Social Security 
Administration, the Veteran died in July 2013 while his 
appeal was pending before the Board.


CONCLUSIONS OF LAW

1.  Due to the death of the Veteran, the Board has no 
jurisdiction to adjudicate entitlement to a rating in excess 
of 10 percent for epiphysitis of the lumbar spine.  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). 

2.  Due to the death of the Veteran, the Board has no 
jurisdiction to adjudicate entitlement to service connection 
for a left leg disorder, to include as secondary to 
epiphysitis of the lumbar spine.  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 FINDING AND CONCLUSIONS

In the absence of evidence to the contrary, a finding of 
fact of death made by another Federal agency will be 
accepted as proof of death.  38 C.F.R. § 3.211(g).

According to the records of the Social Security 
Administration, a Federal agency, the Veteran died in July 
2013, while his appeal was pending and before the Board 
promulgated a decision on the appeal.

In the absence of evidence to the contrary, the Board 
accepts the finding by the Social Security Administration as 
proof of the Veteran's death during the pendency of the 
appeal and before the Board promulgated a final decision.

As a matter of law, the appeal does not survive the 
Veteran's death, and therefore the appeal must be dismissed 
for lack of jurisdiction.  38 U.S.C.A. § 7104(a); 38 C.F.R. 
§ 20.1302 (2012); Landicho v. Brown, 7 Vet. App. 42, 53- 54 
(1994).

The Board's dismissal of the appeal does not affect the 
right of an eligible person to file the 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 Improvements Act of 2008, Pub. L. No.110- 
3889, § 212, 112 Stat. 4145, 4151 (2009) (creating new 38 
U.S.C.A. § 5121A, substitution in case of death of a 
claimant who dies on or as of 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 38 U.S.C.A. § 5121(a).

The Secretary of VA 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 from which the 
claim originated (listed on the first page of this 
decision).


ORDER

The appeal of the claim of entitlement to a rating in excess 
of 10 percent for epiphysitis of the lumbar spine is 
dismissed.

The appeal of the claim of entitlement to service connection 
for a left leg disorder, to include as secondary to 
epiphysitis of the lumbar spine is dismissed.



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs