Citation Nr: 1329628	
Decision Date: 09/16/13    Archive Date: 09/20/13

DOCKET NO.  11-23 035	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Louisville, Kentucky


THE ISSUE

Entitlement to service connection for a chronic respiratory 
disorder, to include as secondary to in-service asbestos 
exposure.


REPRESENTATION

Appellant represented by:	Kentucky Department of 
Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel


INTRODUCTION

The late Veteran served on active duty in the United States 
Navy from August 1969 to August 1973.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from an August 2010 rating decision by the 
Louisville, Kentucky, Regional Office (RO) of the Department 
of Veterans Affairs (VA), which denied the Veteran's claim 
of entitlement to service connection for interstitial lung 
disease.  

At a July 2012 videoconference hearing between the Board and 
the RO, the Veteran, accompanied by his representative, 
appeared at the RO to submit oral testimony and arguments in 
support of his appeal before the undersigned Veterans Law 
Judge.  A copy of the transcript of this hearing has been 
duly obtained and associated with the Veteran's claims file.

In November 2012, the Board remanded the case to the RO via 
the Appeals Management Center (AMC) in Washington, D.C., for 
additional evidentiary development.  Pursuant to the Board's 
determinations in its November 2012 remand, the issue on 
appeal has been recharacterized as entitlement to service 
connection for a chronic respiratory disorder, to include as 
secondary to in-service asbestos exposure, so as to permit 
the broadest characterization of the claim and thereby 
encompass all possible pulmonary syndromes for which the 
Veteran may be entitled to receive VA compensation.  See 
Clemons v. Shinseki, 23 Vet. App. 1 (2009).

Following the development ordered by the Board, the RO/AMC 
readjudicated the Veteran's claim and, in a February 2013 
rating decision/supplemental statement of the case, 
confirmed the previous denial of service connection for a 
chronic respiratory disorder, to include as secondary to in-
service asbestos exposure.  The case was recertified to the 
Board and returned to its custody in March 2013 and the 
Veteran continued his appeal. 

FINDINGS OF FACT


In September 2013, during the pendency of the appeal but 
after the appeal was certified and transferred to the 
custody of the Board, VA received confirmation from the 
Social Security Administration (SSA) that the appellant died 
in July 2013.


CONCLUSION OF LAW

Due to the death of the appellant, 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 FINDING AND CONCLUSION

As relevant, the current appeal was in appellate status, 
certified to the Board in March 2013, and transferred to the 
custody of the Board in March 2013.  Unfortunately, the 
appellant had died during the pendency of the appeal.  In 
September 2013, the VA confirmed through inquiry with the 
SSA that the Veteran had died in July 2013.  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 appellant 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 from which the claim originated (listed on 
the first page of this decision).   


ORDER

The appeal is dismissed.



		
JONATHAN B. KRAMER
	Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs