Citation Nr: 1340071	
Decision Date: 12/04/13    Archive Date: 12/18/13

DOCKET NO.  06-35 005	)	DATE
	)

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


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for basic eligibility for VA benefits.

2.  Legal entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel 
INTRODUCTION

The appellant contended that he had recognized guerilla service, and also active service in the Commonwealth Army of the Philippines (USAFFE).

This matter comes before the Board of Veterans' Appeals (Board) on appeal of June 2006 and May 2009 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

The June 2006 administrative decision declined to reopen the claim of entitlement to basic eligibility for VA benefits, while the May 2009 decision denied entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund.

The Board remanded this case in September 2009 for provision of a hearing.  The appellant testified before the undersigned at a videoconference hearing held in January 2010.  A transcript of that hearing is associated with the claims file.

The Board again remanded the claim in order for the RO to contact the service department and seek service department verification of the appellant's claimed active service in the U.S. Armed Forces in the Far East in World War II.  Certifications dated in May 2013 are included in the claims file. 


FINDING OF FACT

On May 18, 2011 the Board was notified by the Department of Veterans Affairs (VA) Regional Office, Manila, the Republic of the Philippines, that the appellant died in December 2011. 


CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of these claims 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.  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 appellant.  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.




		
WILLIAM H. DONNELLY
	Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs