Citation Nr: 1333798	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  12-15 392	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

Entitlement to a compensable initial disability rating for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Connecticut Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Evan M. Deichert, Counsel
INTRODUCTION

The Veteran served on active duty from March 1973 to March 1977.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of March 2012 of the Hartford, Connecticut, Department of Veterans Affairs (VA) Regional Office (RO) that granted the Veteran's claim for service connection for bilateral hearing loss and assigned a noncompensable rating.

The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in February 2013. A transcript of the hearing is in the Veteran's file.


FINDING OF FACT

During the course of this appeal, the Board was notified that the Veteran died on September [redacted], 2013.


CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the claim of entitlement to a compensable initial rating for bilateral hearing loss.  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).  

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 of entitlement to a compensable initial disability rating for bilateral hearing loss is dismissed.



		
RONALD W. SCHOLZ 
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs