12-01 031 ( 2017 )

Citation Nr: 1744004
Decision Date: 09/18/17 Archive Date: 10/10/17
DOCKET NO. 12-01 031 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in
Manila, the Republic of the Philippines
THE ISSUE
Entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.
ATTORNEY FOR THE BOARD
J. Sandler, Associate Counsel
INTRODUCTION
The appellant asserted that he served in recognized guerilla forces from October 1943 to October 1945 in the service of Armed Forced of the United States.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 memorandum decision by the Manila, Republic of the Philippines Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by a different Veterans Law Judge in February 2017; it has since been reassigned to the undersigned.
FINDING OF FACT
On March 28, 2017, VA was notified that the appellant died in January 2016.
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.
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs