Citation Nr: 1536415	
Decision Date: 08/25/15    Archive Date: 08/31/15

DOCKET NO.  12-17 846A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUE

Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H. Papavizas, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1953 to February 1955.

This matter comes before the Board of Veterans' Appeals Board) on appeal from a rating decision issued in December 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine.  Such decision denied service connection for stroke residuals, claimed as due to radiation exposure; service conection for bilateral foot disorder; and entitlement to SMC based on the need for regular aid and attendance.

In November 2012, the Veteran testified at a hearing before a Decision Review Officer (DRO); a transcript of that hearing has been associated with the claims file.

The Veteran was scheduled to testify at a Board hearing in October 2014, but he did not appear.  He has not offered good cause for his failure to appear.  Thus, his request to testify at a hearing is deemed withdrawn.  See 38 C.F.R. § 20.704.

In December 2014, the Board denied service connection for stroke residuals and remanded the remaining claims for further development.  In April 2015, the RO awarded service connection for left foot strain and for right foot strain, awarding a 20 percent evaluation for each foot, effective April 7, 2001.  As the Veteran has not appealed the effective date or initial rating of this award, these matters are no longer on appeal.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.  The Board notes that, in addition to the VBMS, there is a separate electronic (Virtual VA) claims file associated with the Veteran's claims.  A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal with the exception of an August 2015 letter concerning the death of the Veteran.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

In August 2015, the Board was notified that the Veteran had died in July 2015.


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 died during the pendency of the appeal.  As a matter of law, veterans' 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 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 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). 

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); 79 Fed. Reg. 52,977, 52,982 (Sept. 5, 2014) (to be codified at 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); see 79 Fed. Reg. 52,977, 52,982 (Sept. 5, 2014) (to be codified at 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 decision).  79 Fed. Reg. 52,977, 52,982 (Sept. 5, 2014) (to be codified at 38 C.F.R. § 3.1010(b)). 


ORDER

The appeal is dismissed due to the Veteran's death.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs