Citation Nr: 1805213	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  14-13 775	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for bilateral peripheral vascular disease in the lower extremities.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and F.B.


ATTORNEY FOR THE BOARD

A. Barone, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from November 1944 to November 1946.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Roanoke, Virginia RO.  In September 2014, the claim was remanded by the Board to afford the Veteran a videoconference Board hearing.  In December 2014, a videoconference Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file.  In February 2015, the Board issued a decision denying the Veteran's claims on appeal at that time, including the claim of entitlement to service connection for bilateral peripheral vascular disease in the lower extremities.  The Veteran appealed the denial of service connection for bilateral peripheral vascular disease in the lower extremities to the Court of Appeals for Veterans Claims (Court).

In July 2016, the Court issued a memorandum decision that vacated the February 2015 Board decision and remanded the claim of service connection for bilateral peripheral vascular disease in the lower extremities on appeal for readjudication consistent with the instructions outlined in the memorandum decision.  The July 2016 Court memorandum decision expressly clarified that the only issue that was appealed to the Court and returned to the Board for further action was the claim of entitlement to service connection for bilateral peripheral vascular disease in the lower extremities.  Judgment was entered in August 2016 and the Court's mandate was issued in October 2016.

The Board observes that the RO issued another rating decision denying service connection for bilateral peripheral vascular disease in the lower extremities in May 2015.  However, as that issue was part of an appeal pending before the Court at that time, the May 2015 RO rating decision was issued in error and has no effect (to the extent that it addresses the peripheral neuropathy issue).

In January 2017, the Board remanded the issue remaining on appeal for additional development of the evidence to ensure compliance with the terms of the Court's memorandum decision.  In July 2017, the Board again remanded the issue for further needed development of the evidence.  The case has now returned to the Board for further appellate review.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

In December 2017, before a decision by the Board as to the claims on appeal was promulgated, VA was notified that the Veteran has died.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this claim 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 Veteran and must be dismissed for lack of jurisdiction.  See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

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.  79 Fed. Reg. 52,977, 52,984 (Sept. 5, 2014); 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 appellant's death.  See 38 U.S.C. § 5121A (2012); 79 Fed. Reg. 52,977, 52,982 (Sept. 5, 2014); 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 section 5121(a) of this title ...."  38 U.S.C. § 5121A; see 79 Fed. Reg. 52,977, 52,982 (Sept. 5, 2014); 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).  79 Fed. Reg. 52,977, 52,982 (Sept. 5, 2014); 38 C.F.R. § 3.1010(b).


ORDER

The appeal is dismissed due to the Veteran's death.




______________________________________________
M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs