Citation Nr: 1332841 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 11-11 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an effective date earlier than August 3, 2010, for the assignment of a 100 percent disability rating for a psychiatric disorder, to include schizophrenia. 2. Entitlement to service connection for bladder cancer, status post transurethral resection of a bladder tumor. 3. Entitlement to special monthly compensation based on aid and attendance or housebound status. ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from June 1954 to June 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2010 and March 2011 rating decisions and a decision review officer (DRO) decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This case was previously before the Board in July 2013. At that time, the Board dismissed claims for entitlement to an initial evaluation in excess of 50 percent for a psychiatric disorder, to include schizophrenia, prior to August 3, 2010; entitlement to an evaluation in excess of 20 percent for dislocation and acromial clavicular separation, right shoulder; entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU); and entitlement to an effective date earlier than June 29, 1999, for the grant of service connection for a psychiatric disorder, to include schizophrenia, pursuant to a statement from the Veteran received in March 2011, prior to the promulgation of a decision in the present appeal. The Board remanded the issues of entitlement to service connection for bladder cancer, status post transurethral resection of a bladder tumor; entitlement to special monthly compensation based on aid and attendance or housebound status; and entitlement to an effective date earlier than August 3, 2010, for the assignment of an increased disability evaluation of 100 percent disabling for the service-connected psychiatric disorder, to include schizophrenia for additional development. Specifically the RO was to clarify whether the Veteran wanted an RO hearing and was to obtain additional VA treatment records dated since April 2011. The issues of entitlement to accrued benefits and Dependency and Indemnity Compensation (DIC) benefits have been raised by the record via a statement in September 2013 from the Veteran's widow, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT In September 2013, the Board was notified by the Veteran's widow with a copy of the death certificate that the Veteran died on September [redacted], 2013. CONCLUSION OF LAW Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this claim at this time. 38 U.S.C.A. § 7104(a) (West 2002); 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 the 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 the death of the appellant 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. 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 RO from which the claim originated (listed on the first page of this decision). ORDER The appeal is dismissed. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs