Citation Nr: 1331973	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  09-32 318A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for peripheral arterial disease, claimed as a bilateral leg disorder, to include as secondary to diabetes mellitus. 

2.  Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides. 

3.  Entitlement to service connection for a dental condition, for purposes of dental treatment.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse

ATTORNEY FOR THE BOARD

Jeanne Schlegel, Counsel


INTRODUCTION

The Veteran had active service from September 1960 to September 1963.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA).   

The Veteran presented testimony at a travel Board hearing held before the undersigned Veterans Law Judge in February 2011.

While the service connection claims listed on the title page were pending appellate consideration, the Veteran died.  Accordingly, as will be explained in this disposition, the pending claims will be formally dismissed.  


FINDING OF FACT

In September 2013, the Board received information from the Social Security Administration data base, indicating that the Veteran had died in April 2013.


CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this 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 FINDINGS 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.  



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs