Citation Nr: 1416475	
Decision Date: 04/14/14    Archive Date: 04/24/14

DOCKET NO.  12-30 684A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Pension Management Office
 in Milwaukee, Wisconsin


THE ISSUE

Whether an October 2011 decision to reduce the payment of nonservice-connected pension benefits based on countable income was proper.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

John Francis, Counsel 





INTRODUCTION

The Veteran served on active duty from April 1965 to September 1966. 

This appeal to the Board of Veterans' Appeals (Board) arose from an October 2011 decision in which the Pension Management Office reduced the payment of a non-service-connected pension based on countable income.  In November 2011, the Veteran filed a notice of disagreement (NOD).  A statement of the case (SOC) was issued in September 2012, and the Veteran filed a substantive appeal (via a VA form 9, Appeal to the Board of Veterans' Appeals) in October 2012.  

The Virtual VA paperless claims processing system contains additional VA records that have been considered. 


FINDING OF FACT

In February 2014, VA received a state certificate that the appellant died earlier the same month


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); 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

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 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.


		
JACQUELINE E. MONROE
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs