Citation Nr: 1532122	
Decision Date: 07/28/15    Archive Date: 08/05/15

DOCKET NO.  08-27 490	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for psychiatric disability, claimed as depression, to include on a secondary basis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Whitehead, Counsel



INTRODUCTION

The Veteran served on active duty from November 1972 to March 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia.  When the case was last before the Board in February 2014, it was remanded for further development.

The record before the Board consists of the Veteran's electronic files included in  Virtual VA and the Veterans Benefits Management System.
 

FINDING OF FACT

Before the Board promulgated a decision in this appeal, the Veteran died in April 2015.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal.  38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran died during the pendency of this appeal.  As a matter of law, claims do not survive the claimant's 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).  The 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); 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 any derivative claim brought by a survivor of the Veteran.  

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 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010(b)).  A person eligible for substitution includes, "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title. . . ."  38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010(a)).  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 office from which the claim originated (listed on the first page of this dismissal).  See 38 C.F.R. § 3.1010(b).


ORDER

The appeal is dismissed.



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs