Citation Nr: 1337736	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  10-40 298	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to compensation under 38 U.S.C.A. § 1151 for evisceration of the right eye.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1961 to November 1964.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

In December 2012, as support for his claim, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board.

The Board later, in September 2013, requested a medical expert opinion from an ophthalmologist affiliated with the Veterans Health Administration (VHA).  The designated physician, who works in the VA Healthcare Network of Upstate New York, provided her response opinion in November 2013, and the Board was intending in turn to provide the Veteran and his representative a copy of the opinion so they would have opportunity to submit additional evidence and/or argument in response to it.  See 38 C.F.R. § 20.903 (2013).  Unfortunately, however, the Board has learned of the Veteran's death, requiring immediate summary dismissal of his appeal.


FINDING OF FACT

The Veteran died on October 
[redacted], 2013, during the pendency of this appeal.


CONCLUSION OF LAW

Because of his death, 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 (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 his 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, therefore, has become moot by virtue of his death 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 this 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 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 RO from which the claim originated (listed on the first page of this decision). 



ORDER

The appeal is dismissed.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs