Citation Nr: 1629300 Decision Date: 07/22/16 Archive Date: 08/01/16

DOCKET NO. 12-09 868 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota

THE ISSUE

Whether new and material evidence has been received to reopen a claim of entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

L. Stepanick, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1969 to May 1975, from April 1979 to July 1983, and from November 1990 to June 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota.

FINDING OF FACT

While the appeal was pending and prior to the issuance of a final decision, VA received notice that the Veteran had passed away in July 2016.

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 (2015); but see 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. §§ 3.1010, 20.1106 (2015).

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 (2015).

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 (2015).

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) (2015).

ORDER

The appeal is dismissed.

____________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs