Citation Nr: 1335034	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  10-33 500	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUES

1.  Entitlement to service connection for anxiety disorder.

2.  Entitlement to nonservice-connected pension.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Andrew Mack, Counsel





INTRODUCTION

The Veteran served on active duty from November 1956 to January 1957. 

The claims are before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2009 of a Department of Veterans Affairs (VA) Regional Office (RO).


FINDING OF FACT

According to a shared data base of the Department of Veterans Affairs the Veteran died in November 2010 while his appeal was pending before the Board.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claims. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2010); 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

According to a shared data base of the Department of Veterans Affairs the Veteran died in November 2010 while his appeal was pending before the Board.  







As a matter of law, a claim does not survive the death of a Veteran.  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).  

As the appeal on the merits has become moot by virtue of the death of the Veteran, the appeal must be dismissed for lack of jurisdiction.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2013).

In reaching this determination, the Board intimates no opinion as to the merits of the 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 the 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 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 ...."    


ORDER

The appeal of the claim of service connection for anxiety disorder and claim for nonservice-connected pension is dismissed.


____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs