Citation Nr: 1600843	
Decision Date: 01/08/16    Archive Date: 01/21/16

DOCKET NO.  09-00 383	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Entitlement to service connection for a bilateral eye disability.


ATTORNEY FOR THE BOARD

D. Schechter, Counsel


INTRODUCTION

The Veteran served on active duty from October 1943 to January 1946.

This appeal comes before the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Manila, Republic of the Philippines, Regional Office (RO) of the Department of Veterans Affairs (VA).
In connection with this appeal, the Veteran was scheduled for a Board hearing at the RO in April 2011.  The Veteran did not appear for the hearing or request that the hearing be rescheduled.    

When this case was most recently before the Board in in May 2014, it was decided in part and remanded in part.  While the case was in remand status, the issue of entitlement to service connection a kidney disability (nephrolithiasis) was resolve by in an August 2015 rating decision. The claim for service connection for a bilateral eye disability has since been returned to the Board for further appellate action.

The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS).   
 

FINDING OF FACT

The appellant died in September 2015, prior to the Board deciding his appeal for service connection for bilateral eye disability.


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 (2015). 



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); 38 C.F.R. § 20.1302 (2015).

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 (2015).  

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) (2015).  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 38 C.F.R. § 3.1010(a) (2015).  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).  38 C.F.R. § 3.1010(b) (2015). 

	(CONTINUED ON NEXT PAGE)



ORDER

The appeal is dismissed.



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

Department of Veterans Affairs