Citation Nr: 1334764	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  09-47 026	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an effective date earlier than July 22, 2005, for the grant of service connection for atrial fibrillation.

2.  Entitlement to an initial evaluation in excess of 10 percent for the service-connected atrial fibrillation prior to June 22, 2012, to include an evaluation in excess of 30 percent beginning June 22, 2012.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

Veteran and Spouse


ATTORNEY FOR THE BOARD

M. Hannan, Counsel


INTRODUCTION

The Veteran (appellant) served on active duty from April 1978 to February 1985, and from April 1985 to May 1989.  

This case originally came before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  


FINDING OF FACT

While the Veteran/appellant's appeal to the Board was pending, and prior to the issuance of a final decision, the Veteran died. 


CONCLUSION OF LAW

Due to the death of the Veteran/appellant, the Board has no jurisdiction at this time to adjudicate the merits of the claim for an effective date earlier than July 22, 2005, for the grant of service connection for atrial fibrillation or the claim for an initial evaluation in excess of 10 percent for the service-connected atrial fibrillation prior to June 22, 2012, to include an evaluation in excess of 30 percent beginning June 22, 2012.  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, 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).  

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ORDER

The appeal is dismissed.




____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs