Citation Nr: 1330650	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  07-20 806	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure.

2.  Entitlement to service connection for renal insufficiency, claimed as kidney problems.

3.  Entitlement to service connection for hypertension.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Johnson, Counsel 


INTRODUCTION

The Veteran served on active duty from October 1966 to October 1968.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran testified before a Veterans Law Judge (VLJ) at a hearing in June 2010.  A transcript of the hearing is of record.  During the pendency of this appeal, the VLJ that conducted the June 2010 hearing retired from the Board.  In June 2013, the Veteran was afforded the opportunity to have an additional hearing pursuant to 38 C.F.R. § 19.3(b); no response was received.


FINDING OF FACT

According to the records of the Social Security Administration, the Veteran died in July 2013 while his appeal was pending before the Board.


CONCLUSIONS OF LAW

1.  Due to the death of the Veteran, the Board has no jurisdiction to adjudicate entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).

2.  Due to the death of the Veteran, the Board has no jurisdiction to adjudicate entitlement to service connection for renal insufficiency, claimed as kidney problems.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).

3.  Due to the death of the Veteran, the Board has no jurisdiction to adjudicate entitlement to service connection for hypertension.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012); 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 CONCLUSIONS

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).

According to the records of the Social Security Administration, a Federal agency, the Veteran died in July 2013, while his appeal was pending and before the Board promulgated a decision on the appeal.

In the absence of evidence to the contrary, the Board accepts the finding by the Social Security Administration as proof of the Veteran's death during the pendency of the appeal and before the Board promulgated a final decision.

As a matter of law, the appeal does not survive the Veteran's death, and therefore the appeal must be dismissed for lack of jurisdiction.  38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302 (2012); Landicho v. Brown, 7 Vet. App. 42, 53- 54 (1994).

The Board's dismissal of the appeal does not affect the right of an eligible person to file the 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 38 U.S.C.A. § 5121(a).

The Secretary of VA 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 Veteran should file a request for substitution with the VA regional office from which the claim originated (listed on the first page of this decision).


ORDER

The appeal of the claim of entitlement service connection for diabetes mellitus, type II, to include as due to herbicide exposure is dismissed.

The appeal of the claim of entitlement to service connection for renal insufficiency, claimed as kidney problems is dismissed.

The appeal of the claim of entitlement to service connection for hypertension is dismissed.



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs