Citation Nr: 1601280	
Decision Date: 01/12/16    Archive Date: 01/21/16

DOCKET NO.  08-19 575	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for loss of vision in the right eye.


REPRESENTATION

Appellant represented by:	Peter J. Meadows, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Sarah Richmond, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The Veteran had active military service from November 1945 to November 1948 and from February 1949 to March 1955.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  Jurisdiction of the Veteran's claim remains with the RO in St. Petersburg, Florida.

In November 2008 the Board remanded the claim, in part, so that VA surgery records could be obtained for right eye cataract in 1989 and a YAG capsulotomy in December 1991.  Thereafter, in October 2010, the Board denied the claim noting that all VA treatment records had been obtained to the extent possible.  

In May 2011, pursuant to a joint motion for remand, the U.S. Court of Appeals for Veterans Claims vacated the Board's October 2010 decision and remanded the matter.  The parties to the joint motion found that the Board did not ensure that the RO had complied with the directives of its November 2008 remand.  Specifically it was noted that the Appeals Management Center had made a generic request for all available records from the VAMCs in Gainesville and Miami without specifying the surgery records in 1989 and December 1991.  The joint motion also noted that a second request for records only went back as far as 1992.

The case was returned to the Board, which issued a remand in December 2011.  The case was then again returned to the Board.  This case was last before the Board in June 2013, at which time the claim was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case is once again before the Board for appellate consideration of the issue on appeal.


FINDING OF FACT

In January 2016, VA received notice from the Social Security Administration that the Veteran had died in December 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 (2015); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran 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 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 . . . ."  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 from which the claim originated (listed on the first page of this decision).


ORDER

The appeal is dismissed.



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs