Citation Nr: 1456063	
Decision Date: 12/22/14    Archive Date: 01/02/15

DOCKET NO.  08-16 247	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to an earlier effective date for the assignment of a permanent and total evaluation for encephalitis.   

2.  Entitlement to an earlier effective date for the award of service connection for migraine headaches.  

3.  Entitlement to an earlier effective date for Eligibility for Dependents' Educational Assistance under 38 U.S.C.  

4.  Entitlement to an earlier effective date for the award of special monthly compensation based upon housebound status. 


REPRESENTATION

Veteran represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

C. L. Krasinski, Counsel


INTRODUCTION

The Veteran served on active duty from August 1971 to August 1975 and from April 1984 to Febraury 1987.      

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2006 decision of the the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  


FINDINGS OF FACT

1.  The Veteran served on active duty from August 1971 to August 1975 and from April 1984 to Febraury 1987.   

2.  Prior to promulgation of a decision, the Board was notified that the Veteran had died on August [redacted], 2014.     


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this claim at this time.  38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2014); 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 Veteran in this case died during the pendency of the appeal.  As a matter of law, an appellant's claim does not survive his death.  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 and must be dismissed for lack of jurisdiction.  See 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2014).

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 (2014).  

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 where the claim originated (listed on the first page of this decision). 



ORDER

The appeal is dismissed.




____________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs