Citation Nr: 1800778	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-11 461	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to a higher rate of nonservice-connected death pension.


REPRESENTATION

Appellant represented by:	Kentucky Department of Veterans Affairs


ATTORNEY FOR THE BOARD

N. Nelson, Associate Counsel




INTRODUCTION

The Veteran served on active duty from August 1944 to December 1946.  The Veteran died in April 1972, and the appellant was the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 determination, apparently by the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin, which found that the amount of the appellant's nonservice-connected death pension was correct.

In a March 2014 substantive appeal, the appellant requested a hearing before a Veterans Law Judge; however, in July 2017, the appellant's representative withdrew her hearing request because she was in a nursing home and was medically unable to attend a hearing.  See 38 C.F.R. § 20.704(d).

In October 2015, the Board remanded the case for further development.


FINDING OF FACT

In October 2017, the Board was notified by the VA Regional Office in Milwaukee, Wisconsin, that the appellant died in September 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.  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.



____________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs