Citation Nr: 1808936	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  06-25 948	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for vertigo.

2.  Entitlement to a total rating based on individual employability due to a service-connected disability (TDIU).


ATTORNEY FOR THE BOARD

B. Moore, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1951 to July 1962.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2006 rating decision of the San Juan, Puerto Rico, Regional Office of the Department of Veterans Affairs.  As part of a July 2007 decision, the Board denied the claims on appeal.  The Veteran appealed the Board's denial to the Court of Appeals for Veterans Claims (Court).  In May 2008, the parties submitted a Joint Motion for Remand to the Court, which requested that the Court remand the claims on appeal to the Board for further adjudication.  The Court granted the motion.  The Board later denied the Veteran's claims in a February 2009 decision.  The Veteran appealed this case to the Court for a second time, and, in August 2010, the Court again remanded the Veteran's claims to the Board for further adjudication.  


FINDING OF FACT

On December 18, 2017, the Board was notified by the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico, that the Veteran died in November 2017.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the 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, the Veteran died during the pendency of the appeal.  As a matter of law, veterans' claims do not survive their deaths.  See 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.

A November 2017 statement from the Veteran's widow indicates that that she seeks to continue the Veteran's various appeals.  In reaching the above 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.  See 38 C.F.R. § 20.1106.  

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 above claims to completion.  Such request must be filed no 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 . . . under section 5121(a)[.]"  38 U.S.C. § 5121A; see 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 a veteran should file a request for substitution with the VA office from which the claim originated (listed on the first page of this decision).  See 38 C.F.R. § 3.1010(b).  The Board notes that the RO has yet to adjudicate the issue of substitution in this case.   


ORDER

The appeal is dismissed.




		
VICTORIA MOSHIASHWILI 
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs