Citation Nr: 1745511	
Decision Date: 10/12/17    Archive Date: 10/19/17

DOCKET NO.  10-28 895	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a back disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Kovarovic, Associate Counsel 





INTRODUCTION

The Veteran had active duty service from October 1979 to September 1982.  He died in June 2017.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  Jurisdiction of this case currently rests with the RO in San Juan, Puerto Rico.

This claim was subsequently remanded by the Board in March 2014 and August 2016 for additional development, which has since been completed.  See Stegall v. West, 11 Vet. App. 268 (1998).  

Briefly, the Board notes that the issue of entitlement to service connection for a respiratory disability was also before the Board in March 2014 and August 2016.  However, in a February 2017 rating decision, the Veteran was awarded a 30 percent disability rating for asthma.  As this constitutes a complete grant of the Veteran's service connection claim, this matter is no longer before the Board.


FINDING OF FACT

In June and August 2017, VA was notified that the Veteran died on June [REDACTED], 2017.


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. § 5121A, 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2016).



REASONS AND BASES FOR FINDING AND CONCLUSION

Regrettably, the Veteran died during the pendency of this appeal.  The Board was first informed of the Veteran's death in June 2017.  Subsequently, in August 2017, a Social Security Administration (SSA) inquiry confirmed the Veteran's death on June [REDACTED], 2017.    

As a matter of law, claims do not survive the death of the claimant.  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).  As such, this appeal has become moot by virtue of the death of the claimant and thus 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).

Further, 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 claims to completion.  Such request must be filed not later than one year after the date of the Veteran's death.  38 U.S.C.A § 5121A (West 2014); 38 C.F.R. § 3.1010 (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); 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 RO from which the claim originated.  38 C.F.R. § 3.1010(b) (2016).



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ORDER

The appeal is dismissed.  




____________________________________________
LANA K. JENG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs