Citation Nr: 1415707	
Decision Date: 04/09/14    Archive Date: 04/15/14

DOCKET NO.  09-46 906A	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Whether new and material evidence has been received to reopen a previously denied claim for service connection for a back disorder.  

2.  Entitlement to a rating in excess of 10 percent for tinea pedis, tinea cruris, and tinea corporis.  


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


WITNESSES AT HEARING ON APPEAL

Appellant and spouse

ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counsel


INTRODUCTION

The Veteran served on active duty from November 1964 to November 1966.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions entered in June 2009 and December 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  By its decision of April 2012, the Board determined that new and material evidence had not been received by VA to reopen previously denied claims for service connection for back and bilateral foot disorders and remanded for additional development the issue of whether a rating in excess of 10 percent was for assignment for tinea pedis, tinea cruris, and tinea corporis.  An appeal as to the claims denied by the Board followed to the U.S. Court of Appeals for Veterans Claims, which by its memorandum decision of September 2013 affirmed the Board's denial of the Veteran's claim to reopen for service connection for a bilateral foot disorder, but vacated the Board's action regarding its denial of the claim to reopen for a back disorder and remanded same to the Board for further action.  In the absence of final action by the Board as to the claim for increase for a skin disorder, no action by the Court relating thereto was taken.  The case has since been returned to the Board for additional review.  


FINDING OF FACT

In March 2014, the Board was notified through data obtained from the Social Security Administration that that the Veteran-appellant had died in January 2014.  



CONCLUSION OF LAW

Due to the death of the Veteran-appellant, the Board has no jurisdiction to adjudicate the merits of his pending claims.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2013); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran-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 Veteran-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 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 RO from which the claim originated (listed on the first page of this decision).  


ORDER

The appeal is dismissed.




		
                                                      M. E. LARKIN
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs