Citation Nr: 1644273	
Decision Date: 11/22/16    Archive Date: 12/01/16

DOCKET NO.  08-08 862	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana



THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU).



REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Esq.



ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel





INTRODUCTION

The Veteran served on active duty from January 1960 to January 1964.

This matter comes before the Board of Veterans' Affairs (Board) on appeal of a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  

The Board issued a decision in December 2015 that denied entitlement to TDIU.  The Veteran thereupon appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In June 2016 the Court issued an Order granting a Joint Motion of the Parties to vacate the Board's decision and return the case to the Board.


FINDING OF FACT

On October 12, 2016, the Board received notice from the Veteran's attorney that the Veteran had died in September 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.



		
KATHLEEN K. GALLAGHER
	Veterans Law Judge, Board of Veterans' Appeals






Department of Veterans Affairs