Citation Nr: 1605741	
Decision Date: 02/16/16    Archive Date: 03/01/16

DOCKET NO.  10-25 435	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a left leg fracture.

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for degenerative joint disease of the left hip.


REPRESENTATION

Veteran represented by:	Penelope E. Gronbeck, Attorney at Law


ATTORNEY FOR THE BOARD

Donna D. Ebaugh, Counsel


INTRODUCTION

The Veteran (also referred to herein as 'appellant') served on active duty from October 1947 to February 1950.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by a special processing unit ("Tiger Team") at the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  The RO in Chicago, Illinois, certified the appeal to the Board.

In addition to the issues listed on the title page, the October 2009 rating decision also determined that service connection was not warranted for a left ankle disorder.  The Veteran entered a notice of disagreement as to such denial in November 2009 and a statement of the case addressing such matter was issued in April 2010.  However, the Veteran limited his appeal to the issues listed on the title page of this decision in his June 2010 substantive appeal (VA Form 9).

The Veteran was scheduled for a Board video-conference hearing in connection with his appeal but, unfortunately, passed away prior to the hearing. 

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.  


FINDING OF FACT

On February 5, 2016, the Board was notified via Social Security Administration (SSA) inquiry that the Veteran died in January 2015.


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). 


ORDER

The appeal is dismissed.


		
A. JAEGER
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs