Citation Nr: 18141536
Decision Date: 10/10/18	Archive Date: 10/10/18

DOCKET NO. 15-20 100
DATE:	October 10, 2018
ORDER
The issue of entitlement to a waiver of overpayment debt of Department of Veterans Affairs (VA) pension benefits in the amount of $19,500.00 is dismissed.
FINDING OF FACT
The Veteran died in February 2018.
CONCLUSION OF LAW
Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; but see 38 U.S.C. § 5121A; 38 C.F.R. §§ 3.1010, 22.1106.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from January 1955 to January 1958.
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 any derivative claim brought by a survivor of the Veteran.  38 U.S.C. § 5121A; 38 C.F.R. § 20.1106.
The Board notes that even though the Agency of Original Jurisdiction (AOJ) has sent correspondence to the Veteran’s daughter in relation to his claim for waiver of an overpayment debt, no substitution claim has been received nor has any determination on a substitution claim been made by the AOJ.  The 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 Veteran’s death.  See 38 U.S.C. § 5121A; 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 38 U.S.C. § 5121(a) of this title [38 U.S.C. § 5121(a)].”  38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a).  
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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 AOJ from which the Veteran’s claims originated.  38 C.F.R. § 3.1010(b).
 
Nathan Kroes
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Odya-Weis, Counsel