Citation Nr: 1752669	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  17-11 590	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Whether the decision to reduce the Veteran's pension award effective November 1, 2015, and terminate the Veteran's pension award effective November 1, 2016, was proper. 


REPRESENTATION

Appellant represented by:	Scott W. Sexton, Attorney


ATTORNEY FOR THE BOARD

M. Lavan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1947 to May 1967.  In June 2016, the Veteran was determined incompetent to handle funds and his spouse, the Appellant, was appointed as his fiduciary. 
  
This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2016 decision by the Department of Veterans Affairs (VA) to reduce and discontinue the Veteran's pension benefits.   

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran died in September 2017 while his appeal was pending before the Board.


CONCLUSION OF LAW

Due to the Veteran's death, the Board has no jurisdiction to adjudicate the merits of this claim at this time. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2016).


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.  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 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); 38 C.F.R. § 20.1302.

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.  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 no later than one year after the date of the Veteran's death.  See 38 C.F.R. § 3.1010(b).  As provided for in this provision, 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 . . . ."  Id.  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 (listed on the first page of this decision).  Id. 


ORDER

The appeal is dismissed.



___________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs