Citation Nr: 1332599	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  10-30 507	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to an increased evaluation for diabetes mellitus, currently evaluated as 20 percent disabling.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Nadine W. Benjamin, Counsel


INTRODUCTION

The Veteran (appellant) served on active duty from August 1969 to March 1971.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  


FINDINGS OF FACT

1.  The Veteran in this case served on active duty from August 1969 to March 1971.  

2.  According to the records of the Social Security Administration, the Veteran died in July 2013, while his appeal was pending before the Board.  


CONCLUSION OF LAW

Because of the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claim on appeal.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted by VA as proof of death.  38 C.F.R. § 3.211(g).  

According to the records of the Social Security Administration, a Federal agency, the Veteran died in July 2013, while his appeal was pending and before the Board promulgated a decision on the appeal.  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). 

The Board accepts the finding by the Social Security Administration as proof of the Veteran's death.  38 C.F.R. § 3.211(g).  The appeal must therefore be dismissed for lack of jurisdiction.  38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302; Landicho, 7 Vet. App. 42, 53- 54.

The Board's dismissal of the Veteran's appeals does not affect the right of an eligible person to 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 Veteran's death.  See Veterans Benefits Improvements Act of 2008, Pub. L. No.110- 3889, § 212, 112 Stat. 4145, 4151 (2008) (providing for substitution in case of death of a claimant who dies on or as of October 10, 2008), codified at 38 U.S.C.A. § 5121A.  


ORDER

The Veteran's appeal for a rating higher than 20 percent for his service-connected diabetes mellitus is dismissed.




____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs