14-11 438

• Court: Board of Veterans' Appeals
• Decided: August 15, 2018
• Docket: 14-11 438
• Status: Unpublished

Opinion

Citation Nr: 1829795 Decision Date: 08/15/18 Archive Date: 08/30/18

DOCKET NO. 14-11 438 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina

THE ISSUE

Entitlement to a total disability rating due to individual unemployability.

REPRESENTATION

Veteran represented by: The American Legion

WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse

ATTORNEY FOR THE BOARD

B. Cannon, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from February 1969 to September 1971, including service in the Republic of Vietnam from May 1970 to September 1971.

This case comes to the Board of Veterans' Appeals (Board) on appeal of an October 2012 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA).

In January 2016, a videoconference hearing was held before the undersigned. A transcript of that hearing is of record.

FINDING OF FACT

In November 2016, VA was notified by the Veteran's Veterans Service Officer that the Veteran died in November 2016.

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. § 7104(a); 38 C.F.R. § 20.1302.

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. 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.

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.

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; 38 C.F.R. § 3.1010(b). 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; 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 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).

ORDER

The appeal is dismissed.

BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs