Citation Nr: 1756569	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  12-21 051A	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for a back disability.

2.  Entitlement to service connection for a right knee disability.

3.  Entitlement to service connection for a left knee disability.


REPRESENTATION

Appellant represented by:	Maxwell D. Kinman, Attorney


ATTORNEY FOR THE BOARD

D. Drucker, counsel



INTRODUCTION


The Veteran had active military service from November 1951 to August 1953.

This case initially came to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In an October 2013 decision, the Board denied the Veteran's claims.

The Veteran appealed the Board's October 2013 decision to the United States Court of Appeals for Veterans Claims (Court).  In a February 2015 Memorandum Decision, the Court vacated the Board's decision and remanded the case to the Board for further action.

In June 2015, the Board remanded the Veteran's case to the Agency of Original Jurisdiction (AOJ) for further development.  In an August 2016 decision, the Board again denied the Veteran's claims.

The Veteran appealed the Board's August 2016 decision to the Court.  In March 2017, his attorney filed a Motion to Dismiss Appeal after the Veteran passed away in January 2017.  See 4/4/17 CAVC Decision, pages 2, 4.

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) (West 2014).


FINDING OF FACT

On July 13, 2017, the Board was notified through a Social Security Administration (SSA) Data Inquiry that the appellant died in January 2017.



CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the appellant died during the pendency of the appeal.  See July 2017 SSA notice (Correspondence); 3/17 Motion to Dismiss.  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. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017).

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 (2017).  

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. § 5121A (2012); 38 C.F.R. § 3.1010(b) (2017).  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. § 5121A (2012); see 38 C.F.R. § 3.1010(a) (2017).  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) (2017). 



ORDER

The appeal is dismissed.




		
                                                      Paul Sorisio
	Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs