Citation Nr: 1331387	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  09-43 787	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for hypertension.

2.  Entitlement to service connection for depression, to include as secondary to coronary artery disease.

3.  Entitlement to service connection for hypothyroidism.

4.  Whether new and material evidence has been received to reopen a claim for service connection for histoplasmosis.

5.  Whether new and material evidence has been received to reopen a claim for service connection for manifestations of valley fever.

6.  Whether new and material evidence has been received to reopen a claim for service connection for chronic bronchitis.

7.  Entitlement to service connection for chronic fatigue syndrome.

8.  Entitlement to service connection for hypercholesterolemia.

9.  Entitlement to a compensable rating for hemorrhoids.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. W. Kim, Counsel


INTRODUCTION

The Veteran had active service from April 1966 to February 1970 and January 1971 to November 1987.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In a September 2011 rating decision, the RO granted service connection for coronary artery disease.  Thus, that issue is no longer on appeal.

In March 2012, the Veteran testified during a Board hearing before the undersigned Acting Veterans Law Judge at the RO.  


FINDING OF FACT

On September 19, 2013, the Board received notification from the Social Security Administration death registry that the Veteran died in August 2013.


CONCLUSION OF LAW

Due to the death of the appellant, 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 (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

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 (2012).

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 (2012).  

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.




		
Michael J. Skaltsounis
	Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs