Citation Nr: 1338393	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  10-25 304	)	DATE
	)

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


THE ISSUE
Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure.  


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

Appellant 


ATTORNEY FOR THE BOARD

G. Jivens-McRae, Counsel


INTRODUCTION


The appellant served on active duty from October 1967 to July 1969.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for diabetes mellitus, type II, to include as a result of herbicide exposure.  

The appellant testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in December 2011.  A transcript of that hearing is of record and associated with the claims folder.  


FINDING OF FACT

1.  In October 2013, prior to promulgation of a decision, the VA received notice that the appellant had died.  

2.  At the time of his death, the appellant had a claim for entitlement to service connection for diabetes mellitus type II, to include as a result of herbicide exposure.  


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 (2012); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Unfortunately, the appellant died during the pendency of the appeal.  VA was notified of his death in October 2013.  At the time of his death, the appellant had a claim before the Board for entitlement to service connection for diabetes mellitus, to include as a result of herbicide exposure.  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 is dismissed due to the death of the appellant.  





______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs