Citation Nr: 1709751	
Decision Date: 03/29/17    Archive Date: 04/11/17

DOCKET NO. 15-11 924	)	DATE
	)
	)

On appeal from the decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Huntington, West Virginia


THE ISSUE

Entitlement to Dependents Educational Assistance under 38 USC Chapter 35.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION


The appellant is a veteran (the Veteran) who had active duty service from December 1976 to June 1977 and from September 1977 to September 1979. 

This appeal comes before the Board of Veterans' Appeals (Board) from a July 2012 rating decision of the RO in Louisville Kentucky. Original jurisdiction over the claims file now rests at the RO in Huntington, West Virginia.


FINDING OF FACT

On January 9, 2017, the Board was notified by the Department of Veterans Affairs (VA) Regional Office that the appellant died in January 2017.


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 (2016). 


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 (2016).

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 (2016). 

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) (2016). 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) (2016). 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) (2016). 


ORDER

The appeal is dismissed.




		
JONATHAN B. KRAMER 
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs