Citation Nr: 0003709	
Decision Date: 02/11/00    Archive Date: 02/15/00

DOCKET NO.  95-30 360	)	DATE
	)


On appeal from the decision of the 
Department of Veterans Affairs Regional Office in Chicago, 
Illinois


THE ISSUE

Entitlement to an increased rating for bilateral 
sensorineural hearing loss, currently evaluated as 20 percent 
disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Elizabeth Gallagher, Counsel



INTRODUCTION

The veteran, who served on active duty from March 1944 to 
April 1946, died on July [redacted], 1999.

This matter came before the Board of Veterans' Appeals 
(Board) on appeal from an April 1995 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Chicago, Illinois.

In a decision, which was dispatched on January 27, 1999, the 
Board denied entitlement to a rating greater than 20 percent 
for bilateral sensorineural hearing loss.   Subsequent to the 
January 27, 1999 Board decision, it was noted that prior to 
the dispatch of the decision, the veteran had filed a power 
of attorney appointing the Disabled American Veterans (DAV) 
as his representative.  Further, the DAV had filed, on the 
veteran's behalf, certain additional evidence consisting of 
an audiology report and a chest X-ray, as well as an informal 
hearing presentation.  Through an administrative error, the 
power of attorney, informal hearing presentation, and 
additional medical evidence was not brought to the 
undersigned Board Member's attention prior to the issuance 
and dispatch of the January 27, 1999 decision.
 
VA regulations provide that an appellate decision may be 
vacated by the Board at any time on the request of the 
appellant or his (or her) representative, or on the Board's 
own motion, when there has been a denial of due process.  
38 C.F.R. § 20.904(a) (1999).  The Board finds that the 
issuance and dispatch of a decision prior to acknowledgment 
of the veteran's representative, and prior to the Board's 
review of the legal argument and new evidence the DAV 
submitted on the veteran's behalf, would constitute a 
violation of the appellant's due process rights.  Thus, the 
January 27, 1999 Board decision is hereby vacated.  
38 U.S.C.A. § 7104(a) (West 1991); 38 C.F.R. § 20.904. 

The Board notes that, on March 5, 1999, the veteran filed a 
document, which was styled a motion for reconsideration of 
the Board's January 27, 1999 decision.  As that decision has 
been vacated, that motion is moot.    

Normally, once a Board decision is vacated, a new substantive 
decision is issued in its stead.  However, in this case the 
veteran died on July [redacted], 1999.  Therefore, his appeal 
must be dismissed due to his death, as discussed more fully below.


FINDINGS OF FACT

1.  The veteran in this case served on active duty from March 
1944 to April 1946.

2.  In August 1999, the veteran's widow notified the RO that 
the veteran died on July [redacted], 1999; a copy of his death 
certificate is contained in the claims file.

3.  As the Board's January 27, 1999 decision has been 
vacated, the veteran's death occurred prior to the issuance 
of a final decision by this Board on his appeal.


CONCLUSION OF LAW

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


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Unfortunately, the veteran died during the pendency of his 
appeal.  As a matter of law, veterans' 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 veteran and 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).

In general, the payment of accrued benefits is governed by 
38 U.S.C.A. § 5121 (West 1991), which provides that benefits 
which are "due and unpaid" to the veteran at the time of 
his death may be disbursed to eligible persons.  A claimant, 
such as a surviving spouse, may be entitled to benefits which 
were properly due to the veteran at the time of his death, 
but which were unpaid.  See Zevalkink v. Brown, 102 F.3d 
1236, 1241-42 (Fed. Cir. 1996); see also 38 C.F.R. § 3.1000.

A claim for accrued benefits must be filed within one year 
after the date of the veteran's death.  A claim for death 
pension, compensation, or dependency and indemnity 
compensation is deemed to include a claim for any accrued 
benefits.  38 C.F.R. § 3.1000.  Thus, if the veteran's 
surviving spouse, or other survivor, wishes to file a claim 
for accrued benefits, or another derivative claim, that claim 
must be filed within one year after July [redacted], 1999. 


ORDER

The appeal is dismissed.




		
      ROBERT D. PHILIPP
	Member, Board of Veterans' Appeals