Citation Nr: 20005294
Decision Date: 01/22/20	Archive Date: 01/22/20

DOCKET NO. 18-42 825A
DATE: January 22, 2020

ORDER

Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status is dismissed.

FINDING OF FACT

The record reflects that the Veteran died in December 2019, during the pendency of the appeal.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the Veteran’s appeal at this time.  38 U.S.C. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served 30 years in the United States Navy and Naval Reserves.  The record reflects that his service included a five-month period of active duty for training (ACDUTRA) and a period of active duty from March 1981 to May 2000, to include service in the Southwest Asia Theater of operations during the Persian Gulf War.  

This matter comes to the Board of Veterans' Appeals (Board) from a September 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ).  The Veteran expressed timely disagreement with this determination, and the present appeal ensued.  

1. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or housebound status

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, appellant’s 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.  38 U.S.C. § 7104 (a) (West 2002); 38 C.F.R. § 20.1302 (2019).

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 (2019).

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 death of the appellant.  See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008).  As provided for in this new provision, a person who is eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ...."  The Secretary will be issuing regulations governing the rules and procedures for substitution upon the death of the appellant.  Until such regulations are issued, 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 AOJ from which the claim originated (listed on the first page of this decision).]

 

 

Michael J. Skaltsounis

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Scott W. Dale, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.