Citation Nr: 1756917	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  11-21 079A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office 
in Manila, the Republic of the Philippines


THE ISSUE

Entitlement to nonservice-connected death pension.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Hampton, Associate Counsel



INTRODUCTION

The Veteran had active duty service with the Recognized Guerrillas and Regular Philippine Service from October 21, 1943, to April 5, 1943; on June 4, 1945; and from January 6, 1946, to February 11, 1946.  His awards include a Purple Heart Medal.  The Veteran died on August [REDACTED], 2008, and the appellant is his spouse.

When this case was before the Board in October 2014, it was remanded for additional development.  The case is now again before the Board for further appellate consideration.


FINDING OF FACT

Prior to the promulgation of a decision in this appeal, the appellant died in August 2014.


CONCLUSION OF LAW

Because the appellant has died, the Board has no jurisdiction to adjudicate the merits of the claim.  38 U.S.C. § 7104 (a) (2012); 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 (2014).


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. § 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 appellant.  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; 38 C.F.R. § 3.1010 (b).  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.  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).


ORDER

The appeal is dismissed.




____________________________________________
Kristin Haddock
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs