Citation Nr: 1806290 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 07-04 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether the character of the appellant's discharge from service is considered a bar to payment of VA benefits. REPRESENTATION Appellant represented by: Deanne L. Bonner-Simpson, Attorney WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD P.S. Rubin, Counsel INTRODUCTION The appellant served in the United States Army from April 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. That office determined that the appellant's character of discharge, under other than honorable conditions for willful and persistent misconduct, was a regulatory bar to VA compensation benefits under 38 C.F.R. § 3.12(d)(4). In March 2009, the appellant presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In April 2009, the Board remanded the appeal for further development. Subsequently, the case was returned to the Board for appellate review. In an October 2011 Board decision, the Board denied the appellant's character of discharge issue on appeal. At that time, the character of discharge issue was framed as a new and material evidence issue. The Veteran appealed the Board's October 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2012 Order, the Court vacated and remanded the Board's earlier decision, pursuant to an August 2012 Joint Motion for Remand (Joint Motion). Upon return from the Court, in April 2013 and November 2015, the Board once again remanded the appeal for further development. The case has since returned to the Board for appellate review. In the November 2015 Board decision, the Board also reopened the character of discharge issue, on a finding that new and material evidence had been submitted. Thus, at the present time, only the underlying merits of the character of discharge issue remain on appeal before the Board. FINDING OF FACT On January 4, 2018, the Board was notified 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) (2012); 38 C.F.R. § 20.1302 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Unfortunately, on January 4, 2018, the Board was notified the appellant died during the pendency of the appeal in November 2017. 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) (West 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 appellant. 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. DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs