Citation Nr: 1331968	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  04-10 551	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death as due to VA treatment performed at the VA Medical Center in Las Vegas, Nevada in July 1999.


REPRESENTATION

Appellant represented by:	Mark R. Lippman, Esq.


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

J. W. Loeb


INTRODUCTION

The Veteran served on active duty from September 1950 to May 1952.  He died in January 2000.  This case originally came before the Board of Veterans Appeals (the Board) on appeal of a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.  An August 2005 decision denied the benefits on appeal and the appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court).  In September 2007, the Court issued a decision which vacated the Board's denial and remanded the case to the Board for additional development.  The Board remanded this case back to the RO for additional development in October 2008 and in December 2009.

The Board was informed by data dated in September 2012 from the Social Security Administration that the appellant had died in July 2012.  


FINDING OF FACT

The appellant died prior to promulgation of a decision on the issue on appeal.  


CONCLUSION OF LAW

Because of the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this claim.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012).
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 appellant.  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.



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


Department of Veterans Affairs