Citation Nr: 1237394
Decision Date: 10/31/12 Archive Date: 11/09/12
DOCKET NO. 04-07 007 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Columbia, South Carolina
THE ISSUES
1. Entitlement to service connection for a digestive system condition, including gastroesophageal reflux disease (GERD) and gastroparesis, manifested by nausea, diarrhea and abdominal pain, including as secondary to service-connected diabetes mellitus, type II, and/or posttraumatic stress disorder (PTSD).
2. Entitlement to a total rating based on individual unemployability by reason of service-connected disability (TDIU), a component of the claim for a higher initial evaluation for chronic kidney disease with coronary artery disease.
REPRESENTATION
Veteran represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The Veteran and his spouse
ATTORNEY FOR THE BOARD
M. Donohue, Counsel
INTRODUCTION
The Veteran had active service from September 1967 to August 1970.
These matters came before the Board of Veterans' Appeals (Board) on appeal of September 2003 and April 2004 rating decisions of the RO.
The Veteran and his spouse testified at a hearing held at the RO before the undersigned Veterans Law Judge in September 2006.
The Board remanded these claims to the RO for additional development in February 2007, August 2010 and July 2012.
A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.
FINDINGS OF FACT
1. The Veteran in this case served on active duty from September 1967 to August 1970.
2. The Board was notified by the Social Security Administration that the Veteran died in August 2012.
CONCLUSION OF LAW
Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this claim at this time. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2011); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Unfortunately, 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 Veteran and must be dismissed for lack of jurisdiction. See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2011).
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 (2011).
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 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 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 death.
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 RO from which the claim originated (listed on the first page of this decision).
ORDER
The appeal is dismissed.
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs