Citation Nr: 1333613	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  07-16 563	)	DATE
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Waco, Texas



THE ISSUES

1.  Entitlement to service connection for a skin disorder, to include as secondary to Agent Orange exposure.

2.  Entitlement to an initial evaluation greater than 30 percent for service-connected posttraumatic stress disorder (PTSD).  



REPRESENTATION

Appellant represented by:	Joseph R. Moore, Attorney 




ATTORNEY FOR THE BOARD

M. Carsten, Counsel



INTRODUCTION

The Veteran served on active duty from August 1965 to August 1967.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2006 and January 2011 rating decisions by the RO.

In September 2006, the RO in pertinent part denied service connection for dermatophytosis and onychomycosis, claimed as skin rash.  The Board remanded this issue for further development in July 2009 and January 2012.  

In January 2011, the RO granted service connection for PTSD and assigned a 30 percent rating effective on December 27, 2010.  The Veteran disagreed with the rating and the effective date.

In February 2013, the RO granted an earlier effective date for service connection for PTSD effective on November 30, 2005, which was the date of claim.  This decision resolved the effective date issue.  

A Statement of the Case was furnished in March 2013 on the PTSD evaluation issue.  The attorney submitted correspondence in lieu of a VA Form 9 and this issue was perfected for appeal.  

The Virtual VA and VBMS folders have been reviewed.  

As will be discussed, the appellant's appeal is being dismissed.  This dismissal, however, 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 ...."  See 38 C.F.R. § 3.1000(a) (2013).  

The Secretary has proposed regulations governing the rules and procedures for substitution upon death.  See 76 Fed. Reg. 8666-8673 (Feb. 15, 2011).  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 RO from which the claim originated.  

In August 2013, correspondence was received at the Board indicating that the Veteran's spouse desired to pursue the Veteran's appeal and substitution was requested.  

There is no indication that the RO has made an initial decision regarding the request to substitute.  Accordingly, this issue is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action.  See VBA Fast Letter 10-30 (Revised April 3, 2013).


FINDING OF FACT

In August 2013, the Board received notification that the Veteran passed away in July 2013, prior to promulgation of a decision in this appeal.  



CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal 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

Unfortunately, the appellant 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 appellant 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).  


ORDER

The appeal is dismissed.


		
STEPHEN L. WILKINS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs