Citation Nr: 1333581	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  07-20 303	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Counsel


INTRODUCTION

The Veteran served on active duty from January 1965 to September 1967. 

This matter comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied entitlement to service connection for PTSD. 

In September 2010, the Board remanded the claim on appeal in order for additional evidentiary development to be conducted.  In April 2012, the Board issued a decision that denied service connection for an acquired psychiatric disorder, to include PTSD and depression.  The Veteran appealed that April 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court).  Pursuant to a Joint Motion for Remand, in a November 2012 Order, the Court vacated the Board's decision and remanded the claim to the Board for readjudication in accordance with the Joint Motion.


FINDINGS OF FACT

1.  In September 2013, VA was notified that the Veteran died in June 2013.

2.  At the time of his death, the Veteran had a claim for VA benefits pending before the Board.


CONCLUSION OF LAW

At this time, due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the appeal for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression.  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 FINDINGS AND CONCLUSION

Unfortunately, the Veteran 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 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).

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 (2012). 

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 VA regional office (RO) from which the claim originated (listed on the first page of this decision). 



ORDER

The appeal is dismissed due to the Veteran's death.




____________________________________________
K.A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals





Department of Veterans Affairs