Citation Nr: 1808840	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  13-20 301	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
 in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a bilateral foot disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

B. Elwood, Counsel


INTRODUCTION

The Veteran served on active duty from January 1967 to December 1968.

This appeal to the Board of Veterans' Appeals (Board) arose from an April 2011 rating decision in which the RO in Buffalo, New York denied service connection for a bilateral foot disability.  The Veteran's claims file was subsequently transferred to the jurisdiction of the RO in St. Petersburg, Florida.  In October 2011, the Veteran filed a notice of disagreement (NOD).  A statement of the case (SOC) was issued in June 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veteran's Appeals) in July 2013.

Pursuant to the Veteran's request, he was scheduled for a Board hearing before a Veterans Law Judge on a date in February 2018.  However, given the notice of the Veteran's death, the hearing was cancelled.

While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems.


FINDINGOF FACT

In January 2018, VA was notified that the Veteran died in December 2017.


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) (2012); 38 C.F.R. § 20.1302 (2017); but see 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

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) (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 Veteran'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.



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs