Citation Nr: 1330267	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  06-33 191	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant & spouse


ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counsel

INTRODUCTION

The Veteran served on active duty from March 1969 to March 1971.  

This matter comes before the Board of Veterans' Appeals  (Board) on appeal from a rating decision entered in August 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, denying the Veteran's claim for increase for PTSD.  Following entry of multiple preliminary orders, the Board by its decision of April 2012 denied entitlement to an increased rating for PTSD.  The Board's decision was then appealed to the U.S. Court of Appeals for Veterans Claims (Court) and the parties to that appeal thereafter jointly moved the Court to vacate the Board's April 2012 decision and remand the matter to Board for additional review.  The Court by its October 2012 order granted the parties' motion and the case has since been returned to the Board for further consideration.  


FINDING OF FACT

In February 2013, VA received notice that the Veteran-appellant had died in January 2013.


CONCLUSION OF LAW

Due to the death of the Veteran-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 (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

Unfortunately, the Veteran-appellant died 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 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 (2013).

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 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 RO from which the claim originated (listed on the first page of this decision).  

ORDER

The appeal is dismissed.



		
                                                        M. E. LARKIN
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs