Citation Nr: 1331462	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  11-21 035A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Huntington, West Virginia


THE ISSUE

Entitlement to reimbursement of medical expenses for treatment from March 14, 2011 to March 22, 2011.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

J. W. Loeb

INTRODUCTION

The Veteran served on active duty from September 1963 to August 1966.  This matter comes to the Board of Veterans' Appeals (Board) on appeal of a May 2011 determination by the Department of Veterans Affairs (VA) Medical Center in Huntington, West Virginia. A hearing was held before the undersigned Veterans Law Judge sitting at the Huntington, West Virginia regional office (RO) in April 2012.  

In August 2013, the Veteran's widow filed a motion to be substituted in this appeal.  This motion is referred to the RO for adjudication.


FINDING OF FACT

The Veteran died in July 2013, prior to promulgation of a decision on the issue on appeal.  


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 FINDING AND CONCLUSION

Unfortunately, the Veteran died in July 2013, 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).  Although a request for substitution of the Veteran's widow as the appellant was received by the Board on August 27, 2013, the Board cannot rule on this request in the first instance.  


ORDER

The appeal is dismissed.


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


Department of Veterans Affairs