Citation Nr: 1806218	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  16-45 612	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office Pension Management Center in St. Paul, Minnesota


THE ISSUE

Whether the Veteran's pension benefits from August 1, 2015 to February 1, 2016 were correctly adjusted.


REPRESENTATION

Appellant represented by:	Patricia A. Servaes


ATTORNEY FOR THE BOARD

J. W. Kim, Counsel





INTRODUCTION

The Veteran had active service from January 1942 to October 1945.  

This case comes to the Board of Veterans' Appeals (Board) from a February 2016 decision by the Department of Veterans Affairs (VA) Regional Office (RO) Pension Management Center in St. Paul, Minnesota.

While a June 2017 report of substitution review indicates that the Veteran's surviving spouse has been approved to be a substitute, the actual adjudication of the substitution matter, or a letter notifying the surviving spouse of such adjudication, is not of record and the surviving spouse reported later that month that she still had not received a determination on the substitution matter.  As the record is unclear whether the matter has been adjudicated, the Board does not have jurisdiction over that, and it is referred to the Agency of Original Jurisdiction for appropriate action.  


FINDING OF FACT

On February 21, 2017, the RO was notified that the appellant died in January 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) (2012); 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) (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 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.



		
KELLI A. KORDICH 
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs