Citation Nr: 1330272	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  08-18 292	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to a rating higher than 30 percent for diabetic nephropathy with hypertension associated with Type II Diabetes Mellitus.

2.  Entitlement to a rating higher than 10 percent for diabetic peripheral neuropathy of the right upper extremity.

3.  Entitlement to a rating higher than 10 percent for diabetic peripheral neuropathy of the left upper extremity.

4.  Entitlement to a rating higher than 10 percent for diabetic peripheral neuropathy of the right lower extremity.

5.  Entitlement to a rating higher than 10 percent for diabetic peripheral neuropathy of the left lower extremity.

6.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E. Pomeranz, Counsel


INTRODUCTION

The Veteran had active military service from November 1966 to November 1968.

He appealed to the Board of Veterans' Appeals (Board/BVA) from a November 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

In December 2011, the Board remanded the claims to the RO via the Appeals Management Center (AMC) for further development and consideration.

Unfortunately, the Veteran since has died, requiring the dismissal of his appeal.


FINDING OF FACT

In September 2013 the Board received a Social Security Administration (SSA) Data Inquiry report indicating the Veteran had died in August 2013, so the prior month.



CONCLUSION OF LAW

Because of his death, the Board has no jurisdiction to adjudicate the merits of these claims 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 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran died during the pendency of this 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, therefore, has become moot by virtue of his death 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 these claims to completion.  This request must be filed not 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).  As provided 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 RO from which the claims originated (listed on the first page of this decision).


ORDER

The appeal is dismissed.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs