Citation Nr: 1802852	
Decision Date: 01/12/18    Archive Date: 01/23/18

DOCKET NO.  13-26 526	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Portland, Oregon


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

JR Cummings, Associate Counsel

INTRODUCTION

The Veteran served on active duty from July 1972 to March 1975.

This appeal before the Board of Veterans' Appeals (Board) arose from a June 2011 rating decision in which the RO, inter alia, denied the Veteran's claim for service connection for bilateral hearing loss.  The Veteran filed a notice of disagreement (NOD) with respect to the denial of service connection for bilateral hearing loss in July 2011.  The RO issued a statement of the case (SOC) in August 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in September 2013.

In June 2015, a Board hearing was held before the undersigned Veterans Law Judge at the R..  A transcript of this hearing is of record.

In September 2015, the Board remanded the claim on appeal to the agency of original jurisdiction (AOJ) for further development.  After a subsequent denial by the AOJ, the Board again remanded the claim  April 2016 to satisfy the directives of the first remand.  After accomplishing further action, the AOJ continued to deny the claim, and returned to the matter to the Board for further appellant consideration.  

While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems.


FINDING OF FACT

In December 2017. VA was notified that the Veteran died in November 2017 (see December 2017 VA Form 27-0820a, Report of First Notice of Death).



CONCLUSION OF LAW

Due to the death of the Veteran, 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.  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; 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.




___________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs