Citation Nr: 1801534	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  14-28 617	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for bilateral hearing loss disability.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

N. Rippel, Counsel



INTRODUCTION

The Veteran served on active duty in the Air Force from January 1954 to December 1957.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  The rating decision reopened and denied four claims, service connection for bilateral hearing loss disability, tinnitus, heart murmur, and hypertension, and these issues were addressed in both the corresponding statement of the case (SOC) and supplemental SOC.  However, the Veteran clearly only appealed the claim for bilateral hearing loss disability, as reflected in his VA form 9 substantive appeal received at VA in August 2014.  Thus, this is the only issue on appeal.  

As to this claim, regardless of the RO's actions, the Board is required to consider whether new and material evidence has been received warranting the reopening of the previously denied claim.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims).  

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 December 2017, the Board received information from the Social Security Administration data base indicating that the Veteran died in July 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).  





	(CONTINUED ON NEXT PAGE)


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.




		
C. TRUEBA
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs