Citation Nr: 1752388	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  11-30 320	)	DATE
	)
	)

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


THE ISSUE

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


REPRESENTATION

Veteran represented by: 	Disabled American Veterans


ATTORNEY FOR THE BOARD

Shana Z. Siesser, Counsel



INTRODUCTION

The Veteran served on active duty from December 1967 to July 1969.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut.

This matter was previously before the Board in August 2013 and February 2016, at which time it was remanded for additional development. 

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record.


FINDING OF FACT

The Veteran died in February 2017.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this claim at this time. 38 U.S.C.A. § 7104 (a) (West 2014); 38 C.F.R. § 20.1302 (2017); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran died during the pendency of the appeal. As a matter of law, veterans' claims do not survive their deaths. Smith v. Brown, 10 Vet. App. 330, 333-34 (1997). Thus, the claim on appeal has become moot by virtue of the death of the Veteran and must be dismissed for lack of jurisdiction. See 38 U.S.C.A. § 7104 (a); 38 C.F.R. § 20.1302.

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 Veteran for purposes of processing the claim to completion. Such request must be filed no later than one year after date of the Veteran's death. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C.A. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008). 

As provided for in this provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title . . . ." The Secretary will be issuing regulations governing the rules and procedures for substitution upon death. Until such regulations are issued, 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 Agency of Original Jurisdiction.  The Board notes that a request for substitution was filed but it was denied for lack of an eligible claimant.  


ORDER

The appeal is dismissed. 


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs