Citation Nr: 1803470	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  14-29 925	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to Department of Veterans Affairs (VA) nonservice-connected special monthly pension benefits prior to February 24, 2017.  


REPRESENTATION

Veteran represented by:  Disabled American Veterans


ATTORNEY FOR THE BOARD

Debbie A. Breitbeil, Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from March 1946 to February 1950.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 decision of the VA Regional Office (RO) in Philadelphia, Pennsylvania, which denied the Veteran's claim for nonservice-connected pension benefits.  In May 2016, the Board remanded the case to the RO for the Veteran to be rescheduled for the videoconference hearing he had requested (as notice of a scheduled hearing had been mailed to an incorrect address).  A March 2017 rating decision granted special monthly pension benefits based on the need for the regular aid and attendance of another, effective February 24, 2017; the Veteran through his representative continued his appeal, seeking an earlier effective date for the award.  September 2017 written argument by the Veteran's representative noted the Veteran had not been afforded the hearing ordered in the May 2016 Board remand, and a December 2017 letter from the Board asked the Veteran to clarify whether he still desired a hearing before the Board, and if so, the type of hearing desired.  A letter from the family of the Veteran dated two days prior to the Board's request for clarification letter provided the notice to VA discussed below.  

Over the course of the pending appeal, the claims file has been transferred first to the Providence, Rhode Island RO and then to the New York, New York RO, which currently has jurisdiction of the claim.  


FINDING OF FACT

In December 2017, VA was notified by the Veteran's family in written correspondence that the Veteran had died in November 2017, before a decision by the Board was promulgated on the appeal; a published account of the death in the local news has also been acknowledged. 





CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to at this time adjudicate the merits of his claim seeking VA nonservice-connected special monthly pension benefits prior to February 24, 2017.  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 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

In December 2017 VA was notified by the Veteran's family through written correspondence that he had died in November 2017.  The account of his death is also confirmed in an online local news obituary entry.  As there is no evidence to the contrary, the Board accepts the communication from the Veteran's family and the news account as proof of the Veteran's death during the pendency of the appeal and before the Board promulgated a decision on the appeal seeking VA nonservice-connected special monthly pension benefits prior to February 24, 2017.  38 C.F.R. § 3.211(f). 

As the Veteran died during the pendency of the appeal, as a matter of law the appeal does not survive his death, and the appeal of the claim must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017); Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Landicho v. Brown, 7 Vet. App. 42, 53-54 (1994). 

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 the 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 Veteran'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).  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 seeking VA nonservice-connected special monthly pension benefits prior to February 24, 2017 is dismissed.  
	

		
George R. Senyk
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs