Citation Nr: 1339061 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 06-35 834 ) DATE ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Basic eligibility for entitlement to VA disability benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION This appeal came before the Board of Veterans' Appeals (Board) from an April 2011 Memorandum Decision of the United States Court of Appeals for Veterans Claims (Court). The appeal originates from an April 2009 rating decision. In a decision dated in May 2009, the Board denied the same issue that is captioned above. The appellant appealed that decision to the Court. In an April 2011 memorandum decision, the Court reversed the Board's May 2009 decision, held that new and material evidence had been received, and remanded the issue to the Board for development as specified in the memorandum decision. In December 2011, the Board reopened the claim and remanded for additional evidentiary development to comply with the memorandum decision. The Board notes that the appellant separately filed a claim for benefits under the Filipino Veterans Equity Compensation Fund in May 2009. That claim was denied in an August 2009 decision. The appellant initiated an appeal of that decision, and a statement of the case was issued in December 2009. The appellant submitted a document in February 2010 that arguably qualifies as a substantive appeal, although the wording makes this far from clear. Nevertheless, while the appealed claims deal with distinct benefits under VA law, each requires a threshold determination as to whether the claimant meets the basic eligibility requirements for VA benefits, such as status as a "veteran", the core of any claim before the VA. The Board has accordingly characterized the issue on appeal in these terms, rather than listing the individual benefits sought. The Board must note that in reviewing this case the Board has not only reviewed the physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. In August 2013, the Board issued a decision denying the appellant's claim. However, in the Decision below, the Board vacates that decision, and dismisses the remaining appeal. For reasons detailed below, a claim for substitution has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. In August 2013, the Board issued a decision that denied the appellant's claim. 2. The Board was notified in September 2013 that the appellant had died in April 2013. 3. Because the appellant died during the course of the appeal, the decision in August 2013 was not in accord with due process, and the Board does not have jurisdiction to adjudicate the merits of the underlying claim. CONCLUSIONS OF LAW 1. The criteria are met for vacating the Board's decision of August 21, 2013, regarding basic eligibility for entitlement to VA disability benefits. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2013). 2. Because of the death of the appellant, the Board does not have jurisdiction to adjudicate the claim on appeal. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VACATURE AND DISMISSAL On August 21, 2013, the Board issued a decision that denied the appellant's claim for basic eligibility for entitlement to VA disability benefits. Although the appellant died in April 2013, the Board was not aware of his death until September 2013, several months after the issuance of the decision cited above. As a matter of law, veterans' claims do not survive their deaths. See Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 30, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Because of the death of the appellant in April 2013, the Board lacked jurisdiction in August 2013 to adjudicate the issue on appeal. Accordingly, the August 21, 2013 decision Order is hereby VACATED. Similarly, the Board must dismiss the underlying claim for lack of jurisdiction. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302. 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 RO from which the claim originated (listed on the first page of this decision). In this regard, the Board recognizes that a letter was received in July 2013 from F.F. who asserted that she was the appellant's surviving spouse and seeking to be substituted for the appellant. However, the issue of substitution has not yet been adjudicated by the RO. VA published a proposed rule on substitution on February 15, 2011. See Substitution in Case of Death of Claimant, 76 Fed. Reg. 8,666-01 (proposed Feb. 15, 2011) (to be codified at 38 C.F.R. § 3.1010). VA anticipates that not all persons filing a claim for death benefits will wish to substitute for a deceased claimant. 76 Fed. Reg. at 8,668. Also, unlike accrued benefits claims that are limited to the evidence of record at the time of a claimant's death, a substitute claimant would be able to submit additional evidence to be considered by VA that was not of record at the time of the claimant's death. Id. at 8,669. Here, F.F. has clearly indicated that she wants to be substituted as the appellant for purposes of processing the appellant's claim to completion. The RO, however, has not made a determination as to F.F.'s actual eligibility to substitute in the appeal. The Board does not have jurisdiction to make determinations regarding basic eligibility to substitute in the first instance. See 38 U.S.C.A. § 7104(a), 38 C.F.R. § 20.101(a) (describing the Board's jurisdiction); 76 Fed. Reg. at 8,667-68. Consequently, the proper course at this juncture is to vacate and dismiss the appellant's appeal and refer F.F.'s substitution claim to the RO for adjudication. ORDER The Board's August 21, 2013 decision, regarding basic eligibility for entitlement to VA disability benefits, is vacated. The appeal is dismissed. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs