Citation Nr: 1753794	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  15-10 315	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to special monthly compensation (SMC) based on the need for aid and attendance and/or housebound status.


REPRESENTATION

Appellant represented by:	AMVETS


ATTORNEY FOR THE BOARD

K. Hubers, Counsel


INTRODUCTION

The Veteran served on active duty from October 1984 to October 1986.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.


FINDING OF FACT

On October 26, 2017, the Board was notified by the Department of Veterans Affairs (VA) Regional Office, San Diego, that the Veteran died in September 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. § 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.


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

Department of Veterans Affairs