Citation Nr: 1332770	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  09-12 771	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1. Entitlement to service connection for a left knee disorder, including as secondary to service-connected residuals of a fracture of the left anterior pubic ramus.

2. Entitlement to service connection for an adjustment disorder with anxiety, also including as secondary to the service-connected residuals of the fracture of the left anterior pubic ramus. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel


INTRODUCTION

The Veteran had active military service form June 1980 to February 1981 and subsequent service in the Army Reserves.

She appealed to the Board of Veterans' Appeals (Board/BVA) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In September 2012 the Board remanded her claims to the RO via the Appeals Management Center (AMC) for further development.

Unfortunately, she since has died, during the pendency of this appeal, requiring the Board in turn to summarily dismiss her claims.


FINDING OF FACT

On October 9, 2013, the Board received notification through a Social Security Administration (SSA) database that the Veteran had died in September 2013.


CONCLUSION OF LAW

Because of her death, the Board has no jurisdiction to adjudicate the merits of these claims at this time.  38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2013); 38 C.F.R. § 20.1302 (2013); but see 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 Veteran died during the pendency of this 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 her death and must be dismissed for lack of jurisdiction.  See 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2013); 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 these claims 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 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.




		
KEITH W. ALLEN
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs