Citation Nr: 1338745	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  12-28 214	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1. Entitlement to service connection for peripheral artery disease of the left lower extremity. 

2. Entitlement to service connection for peripheral artery disease of the right lower extremity.  


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

H. Hoeft, 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 from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which in pertinent part, denied the benefits sought on appeal.  Jurisdiction of the claims was subsequently transferred to the RO in Muskogee, Oklahoma.  

The Veteran testified before the undersigned at an April 2013 hearing at the RO. A hearing transcript has been associated with the claims file.


FINDING OF FACT

In October 2013, the Board received confirmation that the Veteran died in September 2013. 


CONCLUSIONS OF LAW

1. The pending appeal for service connection for peripheral artery disease of the left lower extremity is dismissed due to the Veteran's death. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2013).

2. The pending appeal for service connection for peripheral artery disease of the right lower extremity is dismissed due to the Veteran's death. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Regrettably, the Veteran died in September 2013.  At the time of his death, he had claims for service connection for peripheral artery disease of the right lower extremity and peripheral artery disease of the left lower extremity pending before the Board.  However, 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 Veteran 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).  
ORDER

The appeal for service connection for peripheral artery disease of the left lower extremity is dismissed due to the Veteran's death. 

The appeal for service connection for peripheral artery disease of the right lower extremity is dismissed due to the Veteran's death.



_________________________________________________
TANYA A. SMITH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs