Citation Nr: 1333577	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  13-02 544	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to an effective date earlier than April 25, 2011, for the grant of service connection for coronary artery disease.  


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


ATTORNEY FOR THE BOARD

R. Giannecchini, Counsel


INTRODUCTION

The Veteran had active military service from February 1966 to February 1968.  

The present matter comes to the Board of Veterans' Appeals (Board) on appeal following a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  

By way of history, in July 2012, the RO granted service connection and assigned a 30 percent evaluation effective April 25, 2011, as well as a 100 percent evaluation effective April 25, 2012, for coronary artery disease/status post coronary stent.  Thereafter, in an August 2012 rating decision, the RO found clear and unmistakable error (CUE) in its July 2012 rating decision and subsequently granted an effective date of April 25, 2011 for the 100 percent evaluation.  The Veteran perfected an appeal to the April 25, 2011, effective date.  


FINDING OF FACT

In October 2013, the Board learned that the Veteran had died in August 2013.


CONCLUSION OF LAW

Because of the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this claim.  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

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, a Veteran's claim does not survive his death.  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.

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 (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 from which the claim originated (listed on the first page of this decision).  


ORDER

The appeal is dismissed.



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs