Citation Nr: 1330437	
Decision Date: 09/23/13    Archive Date: 09/30/13

DOCKET NO.  11-22 311	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder to include post traumatic stress disorder (PTSD), anxiety disorder not otherwise  specified, organic explosive disorder, organic mood disorder, major depression, personality disorder, and cognitive disorder.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant & Spouse




ATTORNEY FOR THE BOARD

L. Crohe, Counsel


INTRODUCTION

The Veteran served on active duty from August 1964 to February 1966. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) located in St. Paul, Minnesota.

In May 2013, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing; a transcript of that hearing has been associated with the Veteran's Virtual VA claims file.  


FINDINGS OF FACT

1.  On September 4, 2013, the Board received notification that the Veteran died.  

2.  A Social Security Administration inquiry conducted on September 4, 2013, confirmed that the Veteran died on August [redacted], 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 (2013); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Unfortunately, the 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 VA regional office (RO) from which the claim originated (listed on the first page of this decision). 






ORDER

The appeal is dismissed.




____________________________________________
J.A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs