Citation Nr: 1333250	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  12-07 874	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease, lumbar spine with scoliotic deformity.  

2.  Entitlement to an initial evaluation in excess of 10 percent for radiculopathy, right lower extremity.  

3.  Entitlement to an increased evaluation in excess of 50 percent for mood disturbance.


REPRESENTATION

Appellant represented by:	Rebecca C. Patrick, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.M. Seay, Counsel


INTRODUCTION

The Veteran had active service from June 1979 to June 1982.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. 

In July 2012, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.  The Veteran waived review of additional evidence by the agency of original jurisdiction (AOJ).  38 C.F.R. § 20.1304(c) (2012).


FINDING OF FACT

The Veteran died in August 2013, during the pendency of the appeal.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the Veteran's claims 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 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran died during the pendency of the appeal.  The record reflects that the Veteran died in August 2013.  As a matter of law, appellants' claims do not survive their deaths.  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); 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 a 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 claims originated (listed on the first page of this decision). 



ORDER

The appeal as to entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease, lumbar spine with scoliotic deformity, is dismissed.

The appeal as to entitlement to an initial evaluation in excess of 10 percent for radiculopathy, right lower extremity, is dismissed.

The appeal as to entitlement to an increased evaluation in excess of 50 percent for mood disturbance is dismissed.






____________________________________________
U.R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs