Citation Nr: 1737294	
Decision Date: 09/06/17    Archive Date: 09/19/17

DOCKET NO.  13-03 274	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant & S.R.


ATTORNEY FOR THE BOARD

J. Smith, Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from July 1953 to February 1965. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In April 2016, the Veteran testified before the undersigned during a hearing at the RO.  A transcript of the hearing is included in the electronic claims file.  

In May 2016, the Board denied the appeal.  

In August 2016, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). 

In December 2016, the Veteran died.  

In February 2017, the Court vacated the May 2016 Board decision and dismissed the appeal before it.  The Court had not received a request for any party to be substituted for the Veteran.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).



FINDING OF FACT

In December 2016, the Board received notification through the First Notice of Death Program that the Veteran died in December 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 (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.



		
M. TENNER
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs