Citation Nr: 1418525	
Decision Date: 04/25/14    Archive Date: 05/02/14

DOCKET NO.  06-34 515	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUE

Entitlement to service connection for a left hip disability, to include as secondary to the service-connected pes anserine bursitis/tendinitis of the left knee.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. Donohue, Counsel


INTRODUCTION

The Veteran enlisted in the U.S. Army Reserve in September 1979 and served in the Reserve and then the National Guard, from which she retired in July 2000.  The record reflects that she was ordered to three weeks of active duty for training (ADT) from October 29 to November 16, 1979.  The record does not document other specific dates of ADT, other than a Statement of Medical Examination and Duty Status, which shows she was ordered to ADT from June 15 to June 28, 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. 

In an August 2011 decision, the Board denied the Veteran's claim. 

The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court).  While the matter was pending before the Court, in January 2013, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Remand.  

In a February 2013 Order, the Court vacated the Board's August 2011 decision and remanded the matter for readjudication in light of the Joint Motion.

Following the death of the Veteran, the Court issued a subsequent January 2014 Order which recalled its prior February 2013 Order, and dismissed the appeal. 


FINDINGS OF FACT

1. The Veteran in this case had active duty for training from October 29, 1979 to November 16, 1979, and for 13 days in June 1992. 

2. The Veteran died in June 2012.





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 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 (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 VA regional office (RO) from which the claim originated (listed on the first page of this decision).  


ORDER

The appeal is dismissed.



		
CHERYL L. MASON
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs