Citation Nr: 1417789	
Decision Date: 04/21/14    Archive Date: 05/02/14

DOCKET NO.  08-27 358	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to waiver and recovery of an overpayment of $20,979.00, to include whether the debt was validly created.

REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Mac, Counsel



INTRODUCTION

The Veteran served on active duty from September 1968 to April 1970.  He died in January 2014.

This matter comes before the Board of Veterans' Appeals  (Board) on appeal from a September 2007 determination of the St. Petersburg, Florida, Regional Office (RO).  In June 2012 the Board remanded the issue for the Veteran to be scheduled for a Board hearing, however in January 2012 he withdrew his hearing request.  

As discussed below, the Veteran's appeal is being dismissed.  This dismissal, however, 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 ...."  See 38 C.F.R. § 3.1000(a) (2013).

The Virtual VA paperless claims processing system (Virtual VA) and the Veterans Benefits Management System (VBMS) have been reviewed.  A review of Virtual VA shows that in March 2014 the Veteran's widow file a claim for accrued benefits and a claim for substitution upon death of a claimant.  In the cover letter dated in February 2014 to a January 2014 rating decision, the RO indicated that adjudication of the accrued benefits claim was deferred.  A review of the paper and electronic files does not show that an initial decision was made regarding the accrued benefits claim and the claim for substitution.  Further, records on VBMS include a claim that the Veteran filed prior to his death for service connection for bladder cancer, which was not adjudicated.  Accordingly, the Board does not have jurisdiction over these issues and they are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 

Other documents on Virtual VA or VBMS are either duplicative of the evidence of record or are not pertinent to the present appeal.  


FINDING OF FACT

In January 2014, the Board received verification from the Social Security Administration that the Veteran died in January 2014.


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

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 veteran.  38 C.F.R. § 20.1106 (2013).  

(The Order follows on the next page.)


ORDER

The appeal is dismissed.




		
H. N. SCHWARTZ
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs