Citation Nr: 0006890	
Decision Date: 03/14/00    Archive Date: 03/17/00

DOCKET NO.  94 - 31 835A	)	DATE
	)


On appeal from the decision of the 
Department of Veterans Affairs Regional Office in Louisville, 
Kentucky


THE ISSUE

Entitlement to service connection for an acquired psychiatric 
disability other than a phobia to lightning.













FINDINGS OF FACT

1.  The veteran in this case served on active duty from 
November 1942 To January 1946.

2.  By decision of February 26, 1998, the Board of Veterans' 
Appeals (Board) denied entitlement to service connection for 
an acquired psychiatric disability other than a phobia to 
lightning, and the veteran filed an appeal of that decision 
to the United States Court of Appeals for Veterans Claims 
(Court) on May 15, 1998.

3.  Thereafter, the veteran failed to respond to the Court's 
notice to file a brief and subsequently failed to show cause 
why his appeal should not be dismissed due to failure to 
follow the Court's rules; his appeal was dismissed by Court 
order of March 15, 1999, for failure to prosecute his appeal 
and to comply with the rules of the Court.

4.  The death certificate shows that the veteran's death 
occurred on March 29, 1999, prior to the entry of the Court's 
judgment.

5.  In a subsequent Order, dated July 14, 1999, the Court 
denied a motion for substitution by the veteran's spouse, 
granted a motion for reconsideration, revoked its prior order 
of March 15, 1999 dismissing the veteran's appeal, and 
granted 20 days for the veteran's spouse to show cause why 
the February 26, 1998, Board decision should not be vacated 
and the appeal be dismissed for lack of jurisdiction.  

6.  By order of September 8, 1999, the Court vacated the 
Board decision of February 26, 1998, and dismissed the 
veteran's appeal for lack of jurisdiction.

CONCLUSIONS OF LAW

1.  Because of the death of the veteran, the Board has no 
jurisdiction to adjudicate the merits of this claim or to 
take further action.  38 U.S.C.A. § 7104(a) (West Supp. 
1999);  38 C.F.R. § 20.1302 (1999). 

2.  Pursuant to the order of the Court, dated September 8, 
1999, the Board decision of February 26, 1998, is hereby 
vacated and the appeal dismissed.  38 U.S.C.A. §§ 7104(a), 
7252(a) (West Supp. 1999);  38 C.F.R. § 20.1302 (1999). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

By decision of February 26, 1998, the Board denied 
entitlement to service connection for an acquired psychiatric 
disability other than a phobia to lightning, and the veteran 
filed an appeal of that decision to the Court on May 15, 
1998.
Thereafter, the veteran failed to respond to the Court's 
notice to file a brief and subsequently failed to show cause 
why his appeal should not be dismissed due to failure to 
follow the Court's rules; his appeal was dismissed by Court 
order of March 15, 1999, for failure to prosecute his appeal 
and to comply with the rules of the Court.

The death certificate shows that the veteran's death occurred 
on March 29, 1999, prior to the entry of the Court's 
judgment.  His spouse then sought substitution of parties in 
order to pursue the claim on appeal at the time of his death.  
In a Order, dated July 14, 1999, the Court denied the motion 
for substitution by the veteran's spouse, but granted a 
motion for reconsideration, revoked its prior order of March 
15, 1999 dismissing the veteran's appeal, and granted 20 days 
for the veteran's spouse to show cause why the February 26, 
1998, Board decision should not be vacated and the appeal be 
dismissed for lack of jurisdiction.  

In the absence of a showing of cause, the Court issued its 
September 8, 1999, order vacating the Board decision of 
February 26, 1998, and dismissing the veteran's appeal for 
lack of jurisdiction.  In that order, the Court noted that, 
as a matter of law, veterans' claims do not survive their 
deaths and that substitution of parties is not permissible.  
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).  In addition, the Court 
held that the appropriate remedy was to vacate the Board 
decision from which the appeal was taken and to dismiss the 
appeal in order that the Board decision and the underlying RO 
decision will have no preclusive effect in the adjudication 
of any accrued benefits claims derived from the veteran's 
entitlements.  The Court's order also nullified the previous 
merits determination by the RO because that decision was 
subsumed in the Board decision (now vacated).  See Yoma v. 
Brown,  8 Vet. App. 365, 368 (1995).  Because the appeal has 
become moot by virtue of the death of the veteran, it must be 
dismissed for lack of jurisdiction.  See  38 U.S.C.A. § 
7104(a) (West Supp. 1999);  38 C.F.R. § 20.1302 (1999).

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 (1999).


ORDER

The February, 1998, decision of the Board is VACATED and the 
appeal is dismissed.



		
F.   JUDGE   FLOWERS
	Member, Board of Veterans' Appeals