Citation Nr: 1617082	
Decision Date: 04/28/16    Archive Date: 05/04/16

DOCKET NO.  10-29 633 	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York



THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the left knee with limitation of motion. 

2.  Entitlement to an evaluation in excess of 10 percent for Grade I degeneration involving the posterior horn of the left medial meniscus.  



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

S. Krunic, Associate Counsel
INTRODUCTION

The Veteran served on active duty from March 1977 to January 1983.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. 

In April 2015, the Board remanded the case for further development.  That development was completed, and the case has since been returned to the Board for appellate review. 

This appeal was processed using Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.



FINDING OF FACT

In April 2016, prior to the promulgation of a decision, the Board was notified that the Veteran died in April 2016.



CONCLUSION OF LAW

Due to the death of the Veteran, 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 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 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.



____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs