Citation Nr: 1804594	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  17-49 432	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Evaluation for an increased rating beyond 10 percent for gastroesophageal reflux disease (GERD) with oropharyngeal dysphagia.

2.  Entitlement to service connection for headaches.

3.  Entitlement to service connection for coronary artery disease status post myocardial infarction.


REPRESENTATION

The Veteran represented by:  J. Michael Woods, Attorney at Law


ATTORNEY FOR THE BOARD

P. Franke, Associate Counsel

INTRODUCTION

The Veteran had active duty service in the United States Army from February 1953 to February 1955.  He died on December [redacted], 2017.

This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  The matter is before the Board from the first time.

In his September 2017 VA Appeals Form 9, the Veteran declined the option of a Board hearing. 

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager Documents (LCMD) (formerly Virtual VA) electronic claims files.  

It appears that a claim for accrued benefits has been filed and is referred to the RO for initial consideration.


FINDING OF FACT

On December 4, 2017, the Board was notified by the Department of Veterans Affairs (VA) Regional Office, Winston-Salem, North Carolina, that the Veteran died in December 2017.


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, veterans' 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 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).  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 VA office from which the claim originated (listed on the first page of this decision).  38 C.F.R. § 3.1010(b) (2017). 

As the record stands at present, it appears this matter currently resides with the RO for further development and currently there is no evidence that there has been a specific request for substitution for the Veteran as the principal claimant upon his death.  


ORDER

The appeal is dismissed.


		
	                                                MICHAEL D. LYON 
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs