14-40 172 ( 2018 )

Citation Nr: 1829940
Decision Date: 11/28/18 Archive Date: 12/06/18
DOCKET NO. 14-40 172 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUES
1. Entitlement to special monthly compensation based on loss of use of both feet, secondary to bilateral knee injuries.
2. Entitlement to a specially adapted automobile and adaptive equipment or to automobile equipment only.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Mary E. Rude, Counsel
INTRODUCTION
The Veteran served on active duty from January 1972 to November 1984. He died in November 2018.
FINDING OF FACT
In November 2018, VA was notified that the Veteran had died earlier that month.
CONCLUSION OF LAW
Due to the death of the appellant, 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. § 3.1000, 3.1010, 20.1302.
REASONS AND BASES FOR FINDING 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 appellant and must be dismissed for lack of jurisdiction. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.
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; 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).
The Board notes, however, that one of the Veteran's pending claims was for entitlement to a specially adapted automobile and adaptive equipment or to automobile equipment only. A claimant can be found eligible for substitution or accrued benefits only for claims for periodic monetary benefits, and not for claims for personal benefits administered through the Veterans Health Administration. 38 U.S.C. § 5121A; 38 C.F.R. §§ 3.1000, 3.1010. This specific issue therefore is not eligible for substitution or consideration for accrued benefits.
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.
ORDER
The appeal is dismissed.
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs