Citation Nr: 1800739	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  17-27 428	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance or on account of being housebound.


ATTORNEY FOR THE BOARD

G. E. Wilkerson, Counsel


INTRODUCTION

The Veteran served on active duty from September 1950 to June 1952.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of the October 2016 rating decision of the Department of Veterans Affairs (VA) Veterans Benefits Administration.  Jurisdiction is with the VA Regional Office (RO) in Los Angeles, California.



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

In September 2017, the Board received notice that the Veteran died in September 2017, prior to promulgation of a decision in his appeal.


CONCLUSION OF LAW

Due to the Veteran's death, 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 Veteran died during the pendency of the appeal. The record contains a Report of First Notice of Death and death certificate indicating that the Veteran died in September 2017.  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 Veteran 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 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 not later than one year after the date of the Veteran'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; see 38 C.F.R. § 3.1010(a).  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.



____________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs