Citation Nr: 1333142	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  07-27 909	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as due to exposure to asbestos.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant, his wife, and a friend


ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel
INTRODUCTION

The Veteran, who is the appellant, had service in the Merchant Marine on an ocean-going vessel during World War II, from April 30, 1945 to August 15, 1945.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO).  In June 2007 a hearing was held before a Decision Review Officer (DRO) at the RO; a transcript of the hearing is associated with the Veteran's claims file.  He failed to appear for another (February 2008) DRO hearing and for an April 2010 Travel Board hearing scheduled at his request.  This matter was previously before the Board and remanded in June 2010 (when the Board also denied service connection for residuals of a right wrist fracture, residuals of a back and/or neck injury, residuals of a right arm injury, hypertension, a psychiatric disability other than posttraumatic stress disorder, tinnitus) and in January 2011.  

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

According to the Social Security Administration, the Veteran died in December 2010, before a decision by the Board was promulgated on the appeal.


CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the appeal seeking service connection for COPD 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

According to the records of a Federal agency, the Social Security Administration (SSA), the Veteran died in December 2010, before the Board promulgated a decision on his appeal.  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). 

As there is no evidence to the contrary, the Board accepts the finding by SSA as proof that the Veteran died during the pendency of the appeal and before the Board promulgated a decision on the appeal seeking service connection for COPD. 

As the Veteran died during the pendency of the appeal, as a matter of law the appeal does not survive his death, but must be dismissed for lack of jurisdiction.  38 U.S.C.A. § 7104(a; 38 C.F.R. § 20.1302; Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Landicho v. Brown, 7 Vet. App. 42, 53-54 (1994). 

The Board's dismissal of the 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 Improvements Act of 2008, Pub. L. No.110- 3889, § 212, 112 Stat. 4145, 4151 (2009) (creating new 38 U.S.C.A. § 5121A, substitution in case of death of a claimant who dies on or as of 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 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 is dismissed.



____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs