Citation Nr: 1749132	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  10-44 761	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person, or on account of being housebound.

2.  Entitlement to an evaluation in excess of 20 percent for post-operative residuals, hiatal hernia, with history of duodenal ulcer (claimed as stomach condition with reflux) and post-operative vagotomy, Billroth II and hiatal hernia repair.  

3.  Entitlement to a compensable evaluation for bilateral hearing loss.

4.  Entitlement to service connection for residuals of removal of colon.

5.  Entitlement to service connection for vestibular disorder.

6.  Entitlement to service connection for right leg amputation.

7.  Entitlement to service connection for an eyesight disability.

8.  Entitlement to specially adapted housing. 

9.  Entitlement to special home adaptation grant.


REPRESENTATION

Appellant represented by:	Michael A. Steinberg, Esquire


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Joseph R. Keselyak, Counsel


INTRODUCTION

The Veteran served on active duty from February 1965 to March 1969.  

This matter comes before the Board of Veterans' Appeals (Board) from a January 2009, April 2013 and June 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran provided testimony before the undersigned at a Travel Board hearing held at the RO in October 2014 with respect to the issue of entitlement to special SMC based on the need for regular aid and attendance of another person, or on account of being housebound.  With respect to remaining issues, the Veteran requested a hearing before the Board, but unfortunately passed away before a hearing could be scheduled.  

Because the Veteran died during the pendency of this appeal, the appeal will be dismissed.


FINDING OF FACT

On October 16, 2017, the Board received notification that the Veteran died in October 2017.


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


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) (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) (2016).  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) (2016).  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 appeal is dismissed.



		
MICHAEL A. PAPPAS
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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