Citation Nr: 1335076	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  11-04 356	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to compensation under 38 U.S.C.A. § 1151 for improper diagnosis of kidney cancer.

REPRESENTATION

Appellant represented by:	AMVETS


ATTORNEY FOR THE BOARD

D. Johnson, Counsel


INTRODUCTION

The Veteran served on active duty from August 1963 to January 1968.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Veteran was scheduled to appear at a hearing before a Decision Review Officer in July 2011; however, he withdrew his hearing request.


FINDING OF FACT

On October 11, 2013, prior to merits adjudication, the Board was notified that the Veteran died in March 2013. 


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claim.  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, the appeal does not survive the Veteran's death, and the appeal must be dismissed for lack of jurisdiction.  38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302 (2012); Landicho v. Brown, 7 Vet. App. 42, 53- 54 (1994).  

The Board's dismissal of the appeal does not affect the right of an eligible person to file the 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 Veteran's death.  See Veterans Benefits Improvements Act of 2008, Pub. L. No.110- 3889, § 212, 112 Stat. 4145, 4151 (2009) (creating new 38 U.S.C.A. § 5121A, substitution in case of death of a claimant who dies on or as of 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 38 U.S.C.A. § 5121(a).

The Secretary of VA 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 Veteran should file a request for substitution with the VA regional office from which the claim originated (listed on the first page of this decision). 


ORDER

The appeal of entitlement to compensation under 38 U.S.C.A. § 1151 for improper diagnosis of kidney cancer is dismissed.



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



Department of Veterans Affairs