Citation Nr: 1330064	
Decision Date: 09/19/13    Archive Date: 09/25/13

DOCKET NO.  13-04 132	)	DATE
	)
	)

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


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus.

2.  Entitlement to service connection for bilateral neuropathy.


REPRESENTATION

Appellant represented by:	Nancy Lavranchuk, Agent


ATTORNEY FOR THE BOARD

R. Kessel, Counsel



INTRODUCTION

The Veteran served on active duty from May 1964 to August 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.


FINDING OF FACT

In September 2013, the Board was informed that the Veteran died on August [redacted], 2013.


CONCLUSIONS OF LAW

1.  Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus.  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); 38 U.S.C.A. § 5121A (West Supp. 2013).

2.  Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the claim of entitlement to service connection for bilateral neuropathy.  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); 38 U.S.C.A. § 5121A (West Supp. 2013).



REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran died during the pendency of the appeal.  In September 2013, the Board was informed that the Veteran died on August 21, 2013.  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).  Accordingly, the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus and the claim of entitlement to service connection for bilateral neuropathy have become moot by virtue of the Veteran's death and must be dismissed for lack of jurisdiction.  See 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302.

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 appellant for purposes of processing the claims to completion.  Such request must be filed no 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) (codified at 38 U.S.C.A. § 5121A).  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 appellant should file a request for substitution with the VA 

Regional Office from which the claims originated (listed on the first page of this decision).  


ORDER

The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus is dismissed. 

The claim of entitlement to service connection for bilateral neuropathy is dismissed. 



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs