Citation Nr: 1335384	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  10-35 587	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida



THE ISSUES

Entitlement to a total disability rating based on individual unemployability (TDIU).



REPRESENTATION

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



ATTORNEY FOR THE BOARD

J. Hager, Counsel


INTRODUCTION

The Veteran served on active duty from November 1967 to July 1970.

This case comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In that decision, the RO granted entitlement to service connection for anxiety disorder with polysubstance dependence with depressive disorder and assigned a 30 percent rating, effective November 7, 2008.  The RO also denied entitlement to a TDIU.  The Veteran timely appealed the initial rating assigned and the RO subsequently increased the rating to 50 percent, also effective November 7, 2008.  In his August 2010 substantive appeal (VA Form 9), the Veteran indicated that he was only appealing the issue of entitlement to a TDIU, and the issue of entitlement to a higher initial rating was therefore deemed by the RO to be withdrawn.


FINDING OF FACT

On September 4, 2013, the Board was notified by the RO in St. Petersburg, Florida, that the appellant died in February 2013, as indicated by data from the Social Security Administration. 


CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this claim at this time.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2013); 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 (2013).

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 (2013).  

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 is dismissed.


		
MICHAEL D. LYON 
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs