Citation Nr: 1333055	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  08-29 120	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

Entitlement to service connection for tinnitus. 


REPRESENTATION

Appellant represented by:  The American Legion


ATTORNEY FOR THE BOARD

Stephen F. Sylvester, Counsel


INTRODUCTION

The Veteran had active service from June 1961 to October 1969, and from January 1971 to May 1982.  He died in May 2013.

This matter comes to the Board of Veterans Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which, in pertinent part, denied entitlement to service connection for tinnitus.  

In a May 2012 decision the Board denied the claim.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In November 2012, the Court granted a joint motion for remand.


FINDING OF FACT

Social Security Administration Data reveals that the appellant died in May 2013.


CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this claim.  38 U.S.C.A. § 7104(a) (West 2002 and Supp. 2013); 38 C.F.R. § 20.1302 (2013).


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, 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); 38 C.F.R. § 20.1302 .

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 .

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 St. Petersburg, Florida VA regional office (RO). 


ORDER

The appeal is dismissed.

 

_________________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs