Citation Nr: 1330188	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  10-36 182A	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Basic eligibility for VA nonservice-connected pension benefits.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel





INTRODUCTION


The appellant served on active duty with the Alabama Army National Guard from September 1979 to September 1991.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 determination of the Department of Veterans Affairs (VA) Columbia, South Carolina Regional Office (RO).

This appeal contains a hybrid record; part is in a physical claims folder and part is in Virtual VA.  Accordingly, any further consideration of this appellant's case must take into consideration the existence of an electronic record.


FINDING OF FACT

Information received from the Social Security Administration (SSA) shows the appellant died in September 2012 before a decision by the Board was promulgated on his appeal.


CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the claim for nonservice-connected pension benefits 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 FINDING AND CONCLUSION

According to SSA records the appellant died in September 2012, before the Board promulgated a decision on his appeal.  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). As there is no evidence to the contrary, the Board accepts SSA's finding as proof of the appellant's death during the pendency of the appeal, before the Board promulgated a decision on his appeal seeking nonservice-connected pension benefits.  As a matter of law an appeal does not survive the appellant's death.  Therefore, this appeal must be dismissed for lack of jurisdiction.  38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302; Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Landicho v. Brown, 7 Vet. App. 42, 53-54 (1994). 

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 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 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 a veteran should file a request for substitution with the VARO from which the claim originated (listed on the first page of this decision).


ORDER

The appeal seeking nonservice-connected pension benefits is dismissed.


_________________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs