Citation Nr: 1829845	
Decision Date: 09/05/18    Archive Date: 09/24/18

DOCKET NO.  16-40 608A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for diabetes mellitus, type II.


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

K. Parke


INTRODUCTION

The Veteran had active duty from August 1972 to August 1974.

This appeal is before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 


FINDING OF FACT

The Veteran died on April [redacted], 2018.


CONCLUSION OF LAW

Because the Veteran died, the Board has no jurisdiction to adjudicate the merits of the claims. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

As a matter of law, appellants' claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996). The Veteran died during the pendency of the appeal. Therefore, his appeal is moot by virtue of his death, and it must be dismissed for lack of jurisdiction. See 38 U.S.C. § 7104(a); 38 C.F.R. 
§ 20.1302.

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. Moreover, 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 claims to completion. 

Effective October 6, 2014, VA amended its adjudication regulations, regulations concerning representation of claimants, and the Board of Veterans' Appeals' rules of practice to implement section 212 of the Veterans' Benefits Improvements Act of 2008, Public Law 110-389. This legislation added 38 U.S.C. § 5121A to allow an eligible survivor to substitute for a deceased claimant in the decedent's pending claim or appeal of a decision on a claim. The final rule addresses eligibility for substitution and the procedures applicable to requests to substitute in a claim or appeal that is pending before a VA agency of original jurisdiction or an appeal pending before the Board.

Specifically, the final rule added new section 38 C.F.R. § 3.1010 to address eligibility for substitution, how an eligible survivor makes a request to substitute, how VA responds to requests to substitute, a substitute's rights in adjudication, limitations related to substitution, and order of preference among eligible survivors. The final rule also amends §§ 14.630 and 14.631 to address representation of substitutes and §§ 20.900, 20.1106, 20.1302, and 20.1304 to address substitution in appeals pending before the Board.

Additional details regarding these amendments are included in the Federal Register, 79 Fed. Reg. 52979 (Sept. 5, 2014).


ORDER

The appeal is dismissed.


____________________________________________
DELYVONNE WHITEHEAD
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs


