Citation Nr: 1610658	
Decision Date: 03/16/16    Archive Date: 03/23/16

DOCKET NO.  04-31 773A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Whether the overpayment of Department of Veterans Affairs (VA) educational benefits in the calculated amount of $38,210.93 was properly created.

2.  Entitlement to waiver of overpayment of VA educational assistance benefits in the amount of $38,210.93.


REPRESENTATION

Appellant represented by:	Donald C. Hill, Attorney


WITNESSES AT HEARING ON APPEAL

Appellant and four fellow veteran students



ATTORNEY FOR THE BOARD

T. Wishard, Counsel


INTRODUCTION

The Veteran had verified active military service from September 1989 to June 1993, with an additional 19 years and 11 months of prior service, the dates of which are not verified but not pertinent to the issues on appeal.

These issues come before the Board of Veterans' Appeals (Board) on appeal of an August 2003 decision of the VA Regional Office (RO) in Muskogee, Oklahoma, and an August 2004 decision of the Committee on Waivers and Compromises (COWC) of the Muskogee RO. 

These issues were most recently before the Board in January 2014 when the Board denied the Veteran's claims.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims.  In an April 2015 Order, the Court vacated the Board's decision and remanded it for further action.


FINDING OF FACT

In February 2016, VA was notified that the appellant died in January 2016.


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.


		
MICHAEL MARTIN
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs