Citation Nr: 1803396	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  17-07 137	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 10 percent for cervical sprain, also claimed as chronic neck condition.

2.  Entitlement to an initial compensable evaluation for residuals of traumatic brain injury (TBI).

3.  Entitlement to an initial compensable evaluation for migraine, including migraine variants due to TBI, claimed as prostrating headaches.


REPRESENTATION

Appellant represented by:	West Virginia Department of Veterans Assistance


ATTORNEY FOR THE BOARD

J.N. Moats, Counsel


INTRODUCTION

The Veteran served on active duty from July 2010 to June 2015. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2016 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Huntington, West Virginia, which granted service connection for the disabilities on appeal.


FINDING OF FACT

On November 6, 2017, the Board was notified by the Department of Veterans Affairs (VA) Regional Office, Huntington, West Virginia, that the appellant died in November 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.




		
R. FEINBERG
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs