Citation Nr: 1332602	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  10-34 648	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling.  


REPRESENTATION

Veteran represented by:	Jan Dils, Attorney


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Nadine W. Benjamin, Counsel


INTRODUCTION

The Veteran served on active duty from October 1968 to September 1970.  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.  

In February 2013, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim.  A complete transcript is of record.  


FINDINGS OF FACT

1.  The Veteran in this case served on active duty from October 1968 to September 1970.  

2.  Documentation received from Social Security Administration (SSA) death registry confirms that the Veteran died in August 2013.  


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

Unfortunately, the Veteran died during the pendency of 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).  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 (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.  See 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 RO from which the claim originated (listed on the first page of this decision). 


ORDER

The appeal is dismissed.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs