Citation Nr: 1333009	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  11-33 359	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Oklahoma City, Oklahoma


THE ISSUE

Entitlement to reimbursement for payment of unauthorized private medical expenses incurred from May 7, 2010 to May 14, 2010 and May 16, 2010 to May 18, 2010.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his brother


ATTORNEY FOR THE BOARD

M. Moore, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1967 to September 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2010, August 2010, and January 2011 decisions of the Department of Veterans Affairs (VA) VISN 16 Consolidated Fee Unit in Flowood, Mississippi, which denied reimbursement for payment of unauthorized private medical expenses incurred at Integris Baptist Medical Center from May 7, 2010 to May 14, 2010, Clinton Regional Hospital from May 16, 2010 to May 18, 2010, and Parkview Hospital on May 7, 2010.

In March 2012, the Veteran presented sworn testimony during a Travel Board hearing in Muskogee, Oklahoma, which was chaired by the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the Veteran's claims file.


FINDING OF FACT

In October 2013, VA was notified that the Veteran died in October 2012.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claim for reimbursement for payment of unauthorized private medical expenses 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.  See 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 Veteran'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 regional office (RO) from which the claim originated (listed on the first page of this decision).  

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ORDER

The appeal is dismissed.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs