Citation Nr: 1332768	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  10-34 110	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to compensation under 38 U.S.C.A. § 1151 for a back disability.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

K. Haddock, Associate Counsel 


INTRODUCTION

The Veteran had active military service from July 1962 to January 1968.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  

In connection with this appeal, the Veteran testified at a videoconference hearing before a Veterans Law Judge in November 2011 and accepted that hearing in lieu of an in-person hearing before a Veterans Law Judge.  A transcript of that hearing is associated with the claims file.  


FINDING OF FACT

Before the Board promulgated a decision in this appeal, the Veteran died on April [redacted], 2013.  


CONCLUSION OF LAW

Because of the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2013); Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).


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 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330 (1997); Landicho v. Brown, 7 Vet. App. 42 (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.  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.  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.  Any request must be filed not later than one year after the date of the appellant's death.  Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating 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 that new provision, a person eligible for substitution includes a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a).  Any 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 RO from which the claim originated, listed on the first page of this decision.


ORDER

The appeal is dismissed.



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs