Citation Nr: 1606323	
Decision Date: 02/19/16    Archive Date: 03/01/16

DOCKET NO.  11-29 470	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for discogenic disease of the lumbar spine. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

John Francis, Counsel 







INTRODUCTION

The Veteran served on active duty from August 1967 to April 1969. 

This appeal comes before the Board of Veterans' Appeals (Board) from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  

In addition to a paper claims file, the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system contain additional adjudication and medical treatment records and an electronic report from the Social Security Administration (SSA) that have been considered.  


FINDING OF FACT

In February 2016, the Board received an electronic report from the SSA indicating that the Veteran died in June 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).


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran died during the pendency of the appeal.  Specifically, in February 2016, VA received an electronic report from the SSA indicating that the Veteran died in June 2015.  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.



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



Department of Veterans Affairs