15-35 479

Opinion

Citation Nr: 1829887 Decision Date: 09/26/18 Archive Date: 10/03/18

DOCKET NO. 15-35 479 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma

THE ISSUE

Entitlement to waiver of recovery of an overpayment of education benefits in the amount of $2,142.40, to include the preliminary issue of the validity of the debt.

REPRESENTATION

Veteran represented by: Veterans of Foreign Wars of the United States

ATTORNEY FOR THE BOARD

M. C. Wilson, Counsel

INTRODUCTION

The Veteran served on active duty from December 1980 to December 1984.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision that was issued by a Department of Veterans Affairs (VA) Regional Office (RO).

FINDING OF FACT

In September 2018, the Board was notified that the Veteran died in August 2018.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the present 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 appellant died during the pendency of the present 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). Thus, 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). 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 appellant's death. See 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010(b) (2017). A person 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 . . . ." 38 U.S.C. § 5121A; 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 regional 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.

____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs