Citation Nr: 1806780 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-18 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from May 1984 to December 1986. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction now resides with the RO in Wichita, Kansas. FINDING OF FACT The Veteran passed away on April 13, 2017; at the time of the Veteran's death, his appeal for entitlement to a TDIU was pending. CONCLUSION OF LAW Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claim on appeal at this time. 38 U.S.C. § 7104 (a) (West 2012); 38 C.F.R. § 20.1302 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Unfortunately, the Veteran passed away during the pendency of his appeal for entitlement to a TDIU. As a matter of law, the appeal does not survive the Veteran's death, and the appeal must be dismissed for lack of jurisdiction. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Landicho v. Brown, 7 Vet. App. 42, 53-54 (1994). The Board's dismissal of the appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing a claim to completion. Such request must be filed not later than one year after the date of the Veteran's death. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. 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" 38 U.S.C. § 5121A; see 79 Fed. Reg. 52,977, 52,982 (Sept. 5, 2014) (to be codified at 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 RO office from which the claim originated (listed on the first page of this decision). 79 Fed. Reg. 52,977, 52,982 (Sept. 5, 2014) (to be codified at 38 C.F.R. § 3.1010 (b)). ORDER The appeal is dismissed. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs