Citation Nr: 1512772	
Decision Date: 03/25/15    Archive Date: 04/01/15

DOCKET NO.  08-33 561	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to an initial evaluation in excess of 50 percent for depression for the period prior to July 26, 2012.  

REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Joseph R. Keselyak, Counsel



INTRODUCTION

The Veteran had active service from December 1969 to December 1971.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.

In January 2014, the Board denied the claim on appeal, and the Veteran appealed that determination to the Court of Appeals for Veterans Claims ("the Court").  Unfortunately, the Veteran died during the pendency of his appeal to the Court.  As such, in a September 29, 2014, Order the Court vacated the January 2014 Board decision and dismissed the appeal to the Court.  The matter now returns to the Board.


FINDING OF FACT

On September 29, 2014, the Board was notified that the appellant died in July 2014.


CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2014); but see 38 U.S.C.A. § 5121A (West 2014); 79 Fed. Reg. 52,977 (Sept. 5, 2014) (to be codified at 38 C.F.R. pts. 3, 14, and 20). 


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 2014); 79 Fed. Reg. 52,977, 52,984 (Sept. 5, 2014) (to be codified at 38 C.F.R. § 20.1302).

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.  79 Fed. Reg. 52,977, 52,984 (Sept. 5, 2014) (to be codified at 38 C.F.R. § 20.1106).  


ORDER

The appeal is dismissed.



		
MICHAEL A. PAPPAS
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs