Citation Nr: 1331236	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  08-28 282	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a respiratory disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel


INTRODUCTION

The Veteran had active service in the U.S. Air Force from November 1990 to May 1991, including in the Persian Gulf War.  This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  A Travel Board hearing was held at the RO in October 2010.  A transcript of that hearing is contained in the claims file.

FINDING OF FACT

The Veteran died in July 2013, before a decision by the Board was promulgated on the appeal.


CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the claim for service connection for a respiratory disability at this time.  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 CONCLUSION

The Veteran died in July 2013, before the Board promulgated a decision on the appeal.

As the Veteran died during the pendency of the appeal, as a matter of law the appeal does not survive the Veteran's death, and the appeal of the claim must be dismissed for lack of jurisdiction.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2011); Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); 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 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 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 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 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 for service connection for a respiratory disability is dismissed.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs