Citation Nr: 1337826 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-32 122 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a left ankle disability, claimed as secondary to service-connected pes planus. 2. Entitlement to service connection for diabetes mellitus, claimed as secondary to a left ankle disability and service-connected pes planus. 3. Entitlement to service connection for a low back disability, claimed as secondary to a left ankle disability and service-connected pes planus. 4. Entitlement to service connection for a right hip disability, claimed as secondary to a left ankle disability and service-connected pes planus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of December 2006 of the San Diego, California, Department of Veterans Affairs (VA) Regional Office (RO) that denied each of the Veteran's claims for service connection. The Veteran's claims were previously before the Board in January 2011. As each of the claims on appeal had been previously denied, the Board reopened each claim and remanded them for further development. The Board makes no finding here as to whether the requested development was completed. FINDINGS OF FACT During the course of this appeal, the Board was notified that the Veteran died on September [redacted], 2013. CONCLUSIONS OF LAW 1. Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the claim of entitlement to service connection for a left ankle disability 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). 2. Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the claim of entitlement to service connection for diabetes mellitus 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). 3. Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the claim of entitlement to service connection for a low back disability 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). 4. Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the claim of entitlement to service connection for a right hip disability 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 CONCLUSIONS 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 (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). ORDER The appeal of entitlement to service connection for a left ankle disability is dismissed. The appeal of entitlement to service connection for diabetes mellitus is dismissed. The appeal of entitlement to service connection for a low back disability is dismissed. The appeal of entitlement to service connection for a right hip disability is dismissed. RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs