Citation Nr: 1333086 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 08-29 863 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a right hip disorder. REPRESENTATION Veteran represented by: Kathy A. Lieberman, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to January 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in March 2007 and July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The 2007 rating decision denied reopening of claims for service connection for lumbar spine disorder, right hip disorder, and right knee/leg disorder; and the 2008 rating decision denied service connection for gastroesophageal reflux disease (GERD). In May 2012, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a Travel Board hearing at the St. Louis RO. A transcript of that hearing is in the claims file. In a decision dated in July 2012, the Board, in pertinent part, reopened, and then denied, the claims for service connection for a lumbar spine disorder, a right hip disorder, and a right knee/leg disorder; and remanded the issue of service connection for gastroesophageal reflux disease for further development. In a rating decision dated in October 2012, the Appeals Management Center granted service connection for gastroesophageal reflux disease. The benefit sought, namely, service connection, having been granted, that issue is no longer on appeal. In November 2012, the Veteran appealed the Board's July 2012 denial of service connection for a lumbar spine disorder and a right hip disorder to the Court of Appeals for Veterans Claims (Court). In April 2013, the parties filed a Joint Motion for Remand regarding the issues of service connection for a lumbar spine disorder and a right hip disorder, which the Court granted in an Order dated in May 2013. Accordingly, these are the only two issues that remain unresolved. FINDING OF FACT According to the records of the Social Security Administration, the Veteran died in September 2013 while his appeal was pending before the Board. CONCLUSION OF LAW Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the pending appeals for service connection for a lumbar spine disorder and a right hip disorder at this time. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012); 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 In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted as proof of death. 38 C.F.R. § 3.211(g). According to the records of the Social Security Administration, a Federal agency, the Veteran died in September 2013, while his appeal for service connection for a lumbar spine disorder and a right hip disorder was pending, and before the Board promulgated a decision on the appeal. In the absence of evidence to the contrary, the Board accepts the finding by the Social Security Administration as proof of the Veteran's death during the pendency of the appeal. As a matter of law, veterans' 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 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 (2012). The Board's dismissal of the appeal does not affect the right of an eligible person to 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 Veteran's death. 38 U.S.C.A. § 5121A. As provided for in this provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a). An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the Veteran should file a request for substitution with the VA regional office from which the claim originated (listed on the first page of this decision). ORDER The appeal for service connection for a lumbar spine disorder is dismissed. The appeal for service connection for a right hip disorder is dismissed. MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs