Citation Nr: 1808198	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  10-22 861A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for a bilateral arm disability.


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate for Veterans Affairs


ATTORNEY FOR THE BOARD

A. Barner, Counsel



INTRODUCTION

The Veteran served over twenty years in the Puerto Rico Army National Guard and also served on active duty with the United States Army with a period of active duty for training from August 4, 1980, to December 13, 1980, and additional active service from February 3, 2003, to October 19, 2003, and from November 2006 to March 2008.  The Veteran died on January [REDACTED], 2018, while this appeal was in remand status.  The Board would be remiss if it did not recognize the Veteran's outstanding service.  The Veteran was clearly a credit to the Army and to his family, and his service to his country is greatly appreciated.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.  

This appeal was most recently remanded in May 2017.

The Board's dismissal of the current appeal due to the Veteran's death is set forth below.  The request of the Veteran's spouse to be substituted as the appellant for purposes of processing the claim to completion is addressed in the remand.  VA will notify the Veteran's spouse if further action on her part is required.


FINDING OF FACT

The Veteran died in January 2018.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of his 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 died during the pendency of the appeal.  See Death Certificate.  As a matter of law, Veterans' 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) (West 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.  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 (West 2012); 38 C.F.R. § 3.1010 (2017).


ORDER

The appeal is dismissed without prejudice.


REMAND

Although the Veteran died in January 2018 during the pendency of this appeal, the record shows that the Veteran's widow requested substitution as claimant in January 2018.  See VA Form 21-534 Application for DIC, Death Pension, and/or Accrued Benefits.  The Board notes that receipt of a VA Form 21-534 will be accepted as both a claim for accrued benefits and a substitution request.  

However, the record does not include adjudication by the AOJ of the request for substitution, which should be accomplished on remand as an initial matter.  38 C.F.R. § 3.1010(e)(1) (The AOJ must make the initial substitution eligibility determination and provide written notice of that decision; see also, 38 C.F.R. § 3.1010(a) (If a claimant dies after October 10, 2008, and there is already a substitute, the appeal is processed as normal because the substitute has stepped into the shoes of the deceased claimant).

As such, the Board must remand the Veteran's claim to allow the RO the opportunity to adjudicate the issue of substitution, specifically, for a finding on whether there should be a substituted claimant based upon the death of the Veteran and application for substitution.  38 C.F.R. § 3.1010(c)(2).  

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should make an initial substitution eligibility determination for the Veteran's widow and provide her written notice of that decision.  38 C.F.R. § 3.1010(e)(1).  

2.  If there is a substituted claimant, the AOJ should allow an appropriate opportunity for the submission of additional argument and evidence, and adjudicate the appeal.  See 38 C.F.R. § 3.1010(f) (2017).
 
3.  If the benefit sought is not granted, the substituted claimant and any representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2012).





______________________________________________
YVETTE R. WHITE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs