Citation Nr: 1801366	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  10-25 737	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to an increased apportionment of benefits to an estranged spouse, in excess of $45.00 per month.


ATTORNEY FOR THE BOARD

Christine C. Kung, Counsel


INTRODUCTION

The Veteran served on active duty from October 1967 to May 1969.  The appellant is his estranged spouse. 

This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2009 decision of the Department of Veterans Affairs (VA) Regional Office in New York, New York (RO) which granted a special apportionment in the amount of $45.00 monthly to the appellant.  


FINDING OF FACT

On December 1, 2017 the Board was notified by the Department of Veterans Affairs (VA) Regional Office, New York, New York, that the appellant died in June 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) (2014); 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) (2014); 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 (2014); 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 (2014); 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.




		
K. PARAKKAL
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs