16-40 608

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