Citation Nr: 1736594	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  16-04 650	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to service connection for a back disability, to include as secondary to service-connected residuals of a shrapnel wound to the back.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and daughter


ATTORNEY FOR THE BOARD

R. Costello, Associate Counsel 

INTRODUCTION

The Veteran had active service from March 1944 to April 1946 and received a Purple Heart for his service during World War II.

This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in November 2014 issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Oakland, California. 

In October 2016, the Veteran testified regarding these matters at a video conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.  

This matter was previously before the Board in March 2017.  It is now returned to the Board.


FINDING OF FACT

In July 2017, the Board was notified by the Department of Veterans Affairs (VA) Regional Office that the Veteran died in June 2017.  


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.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2016). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran 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) (West 2014); 38 C.F.R. § 20.1302 (2016).

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 (2016).  

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 (West 2014); 38 C.F.R. § 3.1010(b) (2015).  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 (West 2014); see 38 C.F.R. § 3.1010(a) (2015).  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) (2016). 


ORDER

The claim of entitlement to service connection for a back disability is dismissed.



____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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