Citation Nr: 1338977	
Decision Date: 11/26/13    Archive Date: 12/06/13

DOCKET NO.  98-19 456	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila,
The Republic of the Philippines


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Daniel Krasnegor, Attorney At Law


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Counsel



INTRODUCTION

The Veteran served on active duty from October 1947 to April 1967, to include service during the Korean and Vietnam Wars.  He died in May 1997.  The Appellant was his surviving spouse.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 1997 of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

This matter was previously before the Board on several occasions, most recently in July 2010 when it was once again denied.  The Appellant appealed the denial to the United States Court of Appeals for Veterans Claims (Court).  In June 2012, while the appeal was still before the Court, VA and the Court were notified of the death of the Appellant.  The Court then vacated the Board's decision and remanded the case pursuant to 38 U.S.C. § 7252(a) for dismissal for lack of jurisdiction.


FINDING OF FACT

In May 2012, while this matter was pending before the Court and before any decisions issued by the Court became final, VA and the Court were notified of the Appellant's death.

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).


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 Appellant.  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.

  

____________________________________________
Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs