Citation Nr: 1801571	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  11-18 498A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Gainesville, Florida


THE ISSUE

Entitlement to payment or reimbursement under 38 U.S.C. § 1725 for emergency treatment received at the University of Florida Health Shands Hospital from December 8, 2010, to December 9, 2010.


ATTORNEY FOR THE BOARD

A. Odya-Weis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1978 to March 1982 and from October 1982 to January 1984.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 administrative decision of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Gainesville, Florida.


FINDING OF FACT

In March 2017, VA was notified that the Veteran died.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017); but see 38 U.S.C. § 5121A (2012); 38 C.F.R. §§ 3.1010, 22.1106 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran 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 Veteran 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 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 claims 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 (2012); 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 38 U.S.C. § 5121(a) of this title [38 U.S.C.S. § 5121(a)]."  38 U.S.C. § 5121A (2012); 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 Veteran should file a request for substitution with the agency of original jurisdiction from which the Veteran's claims originated (listed on the first page of this decision).  38 C.F.R. § 3.1010(b).


ORDER

The appeal is dismissed.




____________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs