Citation Nr: 1751574	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  13-05 740	)	DATE
	)

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


THE ISSUE

Entitlement to an effective date earlier than July 22, 1988, for the award of service connection for coronary artery disease.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

None (a representative appeared alone to present argument)

ATTORNEY FOR THE BOARD

J.B. Freeman, Counsel


INTRODUCTION

The Veteran served on active duty from May 1963 to May 1965.  He died in November 2015.  The appellant was awarded status as the substitute in this matter by an October 2017 determination by the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO).

This matter previously came before the Board on appeal of a June 2011 rating decision and was decided by the Board in November 2015.  The now-substituted appellant filed an April 2017 motion to vacate the November 2015 decision and requested readjudication of the underlying appeal.  

During his lifetime, the Veteran's representative appeared at an October 2015 hearing to present argument.  No actual testimony was taken.

A validly executed VA Form 21-22 in favor of the Florida Department of Veterans Affairs (FDVA) was received in December 2015.  The FDVA has not been notified of the appellant's motion.  Given the favorable outcome below there is no prejudice to the appellant in ruling on her motion at this time.  The appellant's representative will be included in all future notices so as to accord the appellant her right to representation.  See 38 C.F.R. § 20.600 (2017).

During the Veteran's lifetime, this appeal had been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2017).


ORDER TO VACATE

The Veteran's appeal came before the Board originally in November 2015.  The Veteran died in early November 2015.  Unaware of this, the Board issued a November 10, 2015, decision denying his appeal.  As a matter of law, however, 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).  The current appellant had not yet filed for substitution as of November 10, 2015; thus, the agency of original jurisdiction had not had an opportunity to substitute her for the Veteran.  See 38 C.F.R. § 20.1302.  As a result, there was no living appellant in this matter as of November 10, 2015, and the Board was without jurisdiction to issue a merits decision at that time.  Accordingly, the November 2015 Board decision is vacated.  38 C.F.R. § 20.900(a).  

The Board cannot proceed to adjudicate the appeal at this time.  The appellant requested a hearing before the Board on a VA Form 9 received by VA in August 2016.  Although the Veteran had a hearing in October 2015, he was unable to attend in person and his representative appeared solely for the purpose of offering argument.  As the appellant wishes to testify and testimony on this appeal was not previously received, the Board considers this good cause for a new hearing and grants the appellant's request for a hearing.  See 38 C.F.R. § 20.1304(b)(1) (2017).  Upon scheduling, notice of the hearing date shall be provided to the appellant and her representative under separate cover.




	                        ____________________________________________
	Donnie R. Hachey
	Veterans Law Judge, Board of Veterans' Appeals