Citation Nr: 18106929
Decision Date: 06/01/18	Archive Date: 05/31/18

DOCKET NO. 14-20 447A
DATE:	June 1, 2018
ORDER
The appeal for entitlement to an evaluation in excess of 20 percent for multilevel discogenic and facet joint degenerative changes of the lumbar spine is dismissed.
FINDINGS OF FACT
1.  The Veteran died in October 2016.
2. In November 2016, the Veteran’s surviving spouse filed a timely application for accrued benefits.
3. The Agency of Original Jurisdiction (AOJ) has not made a substitution determination in the appellant’s claim.
CONCLUSION OF LAW
Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal at this time. 38 U.S.C. §§ 5121, 7104(a) (2012); 38 C.F.R. 3.1010, 20.1302 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from July 1977 to July 1978. The Veteran died in October 2016. The appellant is the Veteran's surviving spouse.
This appeal to the Board of Veterans' Appeals (Board) arose from September 2012 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida.
In the September 2012 rating decision, in pertinent part, the RO denied a claim for an increased rating for the Veteran's lumbar spine disability. Prior to his death, the Veteran perfected the appeal.
Unfortunately, because the appellant 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 appellant 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).
However, the Board notes that because the Veteran died after October 10, 2008, the law permits a substitution of claimant when the original claimant dies during the pendency of the claim or appeal. See 38 U.S.C. § 5121A (2012); 38 C.F.R. 
§ 3.1010.
In November 2016, the Appellant filed a timely VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child. This claims form is considered to include a request to substitute for claims pending before VA at the time of the Veteran's death. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(c)(2). The claims file does not reflect that the AOJ has made any substitution determination or informed the appellant about her rights to pursue the increased rating claim pending at the time of the Veteran's death as either a substitute claimant or as a claimant for accrued benefits. Rather, it appears as if the pending claim was treated as an accrued benefit claims.
In Reliford v. McDonald, 27 Vet. App. 297 (2015), the United States Court of Appeals for Veterans Claims (Court) explained that it is an appellant's right to choose whether she wishes to waive substitution when she files a claim for accrued benefits (i.e. VA Form 21-534). Id. at 304. As a substitute claimant, the claim remains that of the deceased Veteran. Evidence obtained following the Veteran's death must be considered, and VA must fulfill its duties to notify and assist the appellant. By contrast, as an accrued benefit claimant, the evidence is limited to the record on the date of the Veteran's death.
 
H. SEESEL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Teague, Associate Counsel