Citation Nr: 1640340	
Decision Date: 10/11/16    Archive Date: 10/27/16

DOCKET NO.  13-33 196	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for degenerative disc disease, lumbosacral spine.  

2.  Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Ralph J. Bratch, Attorney


ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel



INTRODUCTION

The Veteran served on active duty from January 1973 to May 1975.  

This case comes to the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA).  

By decision dated in June 2015, the Board, in pertinent part, denied service connection for degenerative disc disease of the lumbosacral spine and TDIU.  A Motion for Reconsideration was denied in July 2016.  The appellant appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to an April 2016 Order, following a Joint Motion for Remand (JMR).  The parties requested that the Court vacate the Board's June 2016 decision regarding the denial of service connection for degenerative disc disease of the lumbar spine and TDIU and remand the matters so that the Board could provide additional reasons and basis for the decisions.  The Court granted the JMR and remanded the case to the Board.


FINDING OF FACT

On September 15, 2016, the Board was notified by the Veteran's representative that the appellant had died.  Social Security Administration records reflect that the Veteran died in August 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

On September 15, 2016, the Board was notified by the Veteran's representative that the appellant had died.  Social Security Administration records reflect that the Veteran died in August 2016.

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). 

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ORDER

The appeal is dismissed.



		
BARBARA B. COPELAND
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs