Citation Nr: 1008335 Decision Date: 03/05/10 Archive Date: 03/11/10 DOCKET NO. 07-12 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD. 3. Entitlement to service connection for an eye disability. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for a dental disability. 6. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service- connected disability (TDIU). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, attorney ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran had active duty service from July 1970 to July 1973, and from October 1973 to October 1976. The Veteran died in August 2009. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Wichita, Kansas. In that decision, the RO denied the Veteran's claims of service connection for PTSD, depression, "eye problems," bilateral hearing loss, and "dental problems," as well as a claim of entitlement to a TDIU. It was subsequently determined that the Veteran's PTSD claim also included a claim of service connection for an acquired psychiatric disorder other than PTSD. The Board denied the claims in a February 2009 decision. FINDINGS OF FACT 1. The Board denied the Veteran's claims of service connection for PTSD, an acquired psychiatric disorder other than PTSD, an eye disability, bilateral hearing loss, a dental disability and entitlement to a TDIU in February 2009. 2. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court or CAVC). 3. The Veteran died in August 2009, while his appeal to the Court was pending. 4. In October 2009, the Court dismissed the Veteran's appeal to the Court and vacated the Board's February 2009 decision. CONCLUSION OF LAW Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION If a veteran appeals to the Court an adverse determination of the Board with regard to his entitlement to disability compensation benefits under chapter 11 of title 38 of the United States Code, and then dies while the appeal is pending, the appropriate remedy is to vacate the Board's decision and dismiss the appeal before the Court. See, e.g., Landicho v. Brown, 7 Vet. App. 42, 54 (1994). If the Court vacates the Board's decision in that situation, its action has the legal effect of nullifying the underlying adjudication by the agency of original jurisdiction (AOJ). 38 C.F.R. § 20.1104; Yoma v. Brown, 8 Vet. App. 298 (1995). In such a situation, because there is no longer a viable underlying decision by the AOJ, the Board is without jurisdiction to take further action on the merits of the veteran's appeal. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302; Smith v. Brown, 10 Vet. App. 330, 333-34 (1997). Here, the record shows that the Board denied the Veteran's claims in February 2009. The Veteran appealed the Board's decision to the Court. Unfortunately, however, the Veteran subsequently died in August 2009, while his appeal to the Court was pending. In October 2009, the Court dismissed the Veteran's appeal to the Court and vacated the Board's February 2009 decision, per Landicho. The Court's mandate issued in January 2010. In light of the foregoing, the Board does not have jurisdiction to take further action on the merits of the Veteran's appeal. Inasmuch as the Board's February 2009 decision has been vacated, and the underlying decision by the RO nullified, there is no legal basis upon which to proceed with appellate review. Therefore, the appeal must be dismissed. In reaching this determination, the Board intimates no opinion as to the merits of this appeal or any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106. 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 Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008). As provided for in this new provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ...." The Secretary will be issuing regulations governing the rules and procedures for substitution upon death. Until such regulations are issued, 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 regional office (RO) from which the claim originated (listed on the first page of this decision). ORDER The appeal is dismissed. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs