Citation Nr: 1332388	
Decision Date: 10/18/13    Archive Date: 10/24/13

DOCKET NO.  09-06 253	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder and posttraumatic stress disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Stephen Eckerman, Counsel






INTRODUCTION

The Veteran served on active duty from April 1976 to November 1988. 

This matter is on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  


FINDING OF FACT

On September 10, 2013, the Board was notified by the Department of Social Security that the Veteran died in August 2013. 


CONCLUSION OF LAW

Due to the death of the Veteran, 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 (2011). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran appealed a February 2008 rating decision that denied the issue of service connection for an acquired psychiatric disorder.  Unfortunately, the Veteran died during the pendency of the appeal.  The Social Security Administration reports that he died in August 2013.  His death was also listed in the August 28, 2013 edition of the Orlando Sentinel.

As a matter of law, Veterans' 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 Veteran 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. 

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 A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs