Citation Nr: 1330797	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  11-32 606	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

1.  Entitlement to an initial evaluation in excess of 50 percent for major depressive disorder.

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


REPRESENTATION

Appellant represented by:	Attorney John R. Worman


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel



INTRODUCTION

The Veteran had active service from July 1987 to April 1995.

This matter comes before the Board of Veterans' Appeals (Board) from October 2010 and January 2011 rating decisions of the above Department of Veterans Affairs (VA) Regional Office (RO).


FINDINGS OF FACT

The Veteran died on June [redacted], 2013 during the course of his appeal to the Board.


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

In October 2010 and January 2011 decisions, the RO denied the Veteran's claims of entitlement to entitlement to a TDIU and to an initial evaluation in excess of 50 percent for major depressive disorder.  New evidence was submitted within a year of the January 2011 decision, and in an October 2011 decision the RO continued the 50 percent evaluation for major depressive disorder.  The Veteran filed timely notices of disagreement and also filed timely substantive appeals.  In May 2013, his claims were initially certified to the Board.  In July 2013, records which state that the Veteran died on June 7, 2013 were associated with the claims file.

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


ORDER

The appeal is dismissed.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs