13-30 404

Citation Nr: 1829732
Decision Date: 07/26/18 Archive Date: 08/02/18
DOCKET NO. 13-30 404 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection of a bilateral eye condition.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
M. Pryce, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1942 to July 1966.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
As is addressed in the below dismissal, the Veteran died during the pendency of the claim. In June 2018, the Veteran's son filed a petition to substitute as appellant on the claim addressed in this dismissal. Entitlement to substitute as an appellant is a separately appealable issue from an underlying claim. If the Veteran's son's petition to substitute is subsequently granted, the appeal will be reinstated.
FINDING OF FACT
On May 14, 2018, the Board was notified by the RO in Philadelphia, Pennsylvania, that the appellant died in May 2018.
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.A. § 7104(a); 38 C.F.R. § 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.A. § 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 appellant's death. See 38 U.S.C.A. § 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.A. § 5121A; see 38 C.F.R. § 3.1010(a)-(b). As stated above, the Veteran's son has filed a request for substitution on this claim, and should that petition be granted, the claim will be reinstated.
ORDER
The appeal is dismissed.
B. T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs