Citation Nr: 1118558 Decision Date: 05/13/11 Archive Date: 05/17/11 DOCKET NO. 96-29 785 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a disability manifested by right-sided pain. 2. Entitlement to service connection for a right nostril disability. 3. Entitlement to service connection for residuals of left forearm burn scars. 4. Entitlement to service connection for cancer of the left breast. 5. Entitlement to service connection for a right forearm disability. 6. Entitlement to service connection for residuals of a right knee injury. 7. Entitlement to service connection for residuals of a left foot laceration. 8. Entitlement to service connection for residuals of right thumb fracture. 9. Entitlement to service connection for a lung disability. 10. Entitlement to VA compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of facial trauma, residuals of dental trauma, a neck disability, migraine headaches, seizures, a jaw disability, a right eye disability, and posttraumatic stress disability. 11. Entitlement to VA compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a right shoulder disability, a right ankle disability, and a left elbow disability. 12. Whether new and material evidence has been received to reopen a claim for service connection for degenerative arthritis of the back. 13. Whether new and material evidence has been received to reopen a claim for service connection for a gastrointestinal disability. 14. Whether new and material evidence has been received to reopen a claim for service connection for right epididymitis. 15. Whether new and material evidence has been received to reopen a claim for service connection for an eye disability. 16. Whether new and material evidence has been received to reopen a claim for service connection for erectile dysfunction. 17. Whether new and material evidence has been received to reopen a claim for service connection for skin cancer. 18. Whether new and material evidence has been received to reopen a claim for service connection for a dental disability. 19. Whether new and material evidence has been received to reopen a claim of entitlement to VA compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a psychiatric disability due to the denial of VA Vocational and Rehabilitation benefits. 20. Whether new and material evidence has been received to reopen a claim of entitlement to VA compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a psychiatric disability due to surgery for skin cancer. 21. Whether new and material evidence has been received to reopen a claim of entitlement to VA compensation benefits under the provisions of 38 U.S.C.A. § 1151 for right shoulder disability, right arm disability and 6th rib due to a fall in December 2003. 22. Entitlement to a rating in excess of 10 percent for a left thumb laceration scar. 23. Entitlement to a compensable disability rating for hemorrhoids. REPRESENTATION Appellant represented by: Nancy Foti, Attorney ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from April 1960 to August 1967. This matter initially came to the Board of Veterans' Appeals (the Board) on appeal from October 1992 and April 1996 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. An October 1992 rating decision denied the Veteran's claims of entitlement to service connection for a right-sided pain disability, a right nostril disability, left forearm burn scars, and left breast cancer. The October 1992 rating decision also found that new and material evidence was not submitted to reopen previously denied claims of entitlement to service connection for skin cancer, impotence, arthritis of the back, a gastrointestinal disability, right epididymitis, an eye disability, and an acquired psychiatric disability. The decision further determined that the Veteran was not entitled to compensable evaluations for service-connected residuals of a left thumb laceration or for hemorrhoids. The April 1996 rating decision denied the Veteran's claim of entitlement to service connection for a right forearm disability, and his claims of entitlement to compensation benefits for residuals of facial trauma, residuals of dental trauma, a right shoulder disability, a neck disability, migraine headaches, seizures, a jaw disability, a right eye disability, posttraumatic stress disability, a right ankle disability, a left elbow disability, and a right breast disability, pursuant to 38 U.S.C.A. § 1151. The Veteran perfected appeals of those decisions. By a decision entered in March 1999, the Board granted compensation benefits for a right breast gynecomastia disability pursuant to 38 U.S.C.A. § 1151; denied service connection for a right-sided pain disability, a right nostril disability, left forearm burn scars, left breast cancer, and a right forearm disability; denied compensation benefits for residuals of facial trauma, residuals of dental trauma, a neck disability, migraine headaches, seizures, a jaw disability, a right eye disability, posttraumatic stress disorder, a right shoulder disability, a right ankle disability, and a left elbow disability pursuant to 38 U.S.C.A. § 1151; determined that new and material evidence had not been received to reopen claims for service connection for a gastrointestinal disability, right epididymitis, an acquired psychiatric disability, skin cancer, impotence, arthritis of the back, and an eye disability; denied claims for compensable evaluations for service-connected hemorrhoids and for service- connected residuals of a left thumb laceration scar; and remanded to the RO for additional development claims for service connection for disabilities of the left foot, right thumb, and right knee. In May 1999, the Veteran filed a motion for reconsideration of the Board's March 1999 decision. See 38 U.S.C.A. § 7103 (West 2002); 38 C.F.R. §§ 20.1000, 20.1001 (2010). Thereafter, in July 1999, while the May 1999 motion was pending, he filed a Notice of Appeal (NOA) with the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court). He filed a second motion for reconsideration with the Board in October 1999, and made further submissions to the Court in February and March 2000. By Order entered in late March 2000, the Court dismissed the Veteran's appeal to the Court for lack of jurisdiction. The Court found that his NOA was premature because he had filed a motion for reconsideration of the Board's decision within the 120-day judicial appeal period, and before filing the NOA, and because the motion was not yet acted upon by the Board. By the same decision, the Court also denied the Veteran's motion for sanctions, his motion for extraordinary relief, and his motion requesting that the Court instruct the Board to complete review of his motion for reconsideration within 60 days and to assume jurisdiction should the review not be completed. By Order entered in April 2000, the Court denied the Veteran's motion for reconsideration of the Court's March 2000 Order. In a May 2000 decision, the Board denied the Veteran's May and October 1999 motions for reconsideration of its March 1999 decision. Another motion for reconsideration was received from the Veteran in October 2000, and the Board denied that motion in a November 2000 decision. The Veteran initiated another appeal of the Board's March 1999 decision to the Court and, in January 2001, the appellant and the VA's General Counsel filed a Joint Motion for Partial Remand and to Stay Further Proceedings. The parties requested the Court to dismiss the issues pertaining to whether new and material evidence had been submitted to reopen claims for service connection for skin cancer, impotence, arthritis of the back, a gastrointestinal disability, right epididymitis, an eye disability, and an acquired psychiatric disability. The parties also noted that the Court lacked jurisdiction over the issues of entitlement to service connection for disabilities of the left foot, right thumb, and right knee, inasmuch as those issues had been remanded by the Board. With regard to all other remaining claims, the parties agreed that the Board's decision should be vacated and the matter remanded for further action. Specifically, the parties agreed that: (1) the Board should afford the Veteran examinations regarding the current severity of his service-connected hemorrhoids and left thumb laceration scar, and the examiner should be provided with the Veteran's claims file; (2) the Board should provide a further discussion of the precipitating causes of the injuries arising out of assaults the Veteran suffered at VA facilities in February 1990 and September 1991 (claimed as facial trauma, dental trauma, a neck disability, migraine headaches, seizures, a jaw disability, a right eye disability, and posttraumatic stress disorder)-in accordance with VAOPGCPREC 7-97 and considering the benefit-of-the-doubt doctrine-and should address the evidence that appears to show that he had been admitted to a VA domiciliary for treatment of his psychiatric disability at the time of the February 1990 assault; and (3) the Board should re-adjudicate the remaining claims (the service connection claims and the claims for compensation for disabilities of the right shoulder, right ankle, and left elbow pursuant to 38 U.S.C.A. § 1151) in light of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106- 475, 114 Stat. 2096 (2000) (now codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010)). By Order dated in January 2001, the Court granted the Joint Motion, partially vacating the Board's decision and remanding the vacated matters to the Board. In October 2001, the Board remanded the Veteran's case to the RO for further evidentiary and procedural development. By a November 2002 rating decision, the RO increased the evaluation for left thumb laceration scar from zero to 10 percent, effective March 4, 1992. In November 2002, the Veteran perfected an appeal as to the issues of entitlement to service connection claim for residuals of left foot laceration, right thumb fracture, and right knee injury. These matters were the subject of two remands issued by the Board in December 2003. In September 2006, the Board remanded the issues for any outstanding VA medical records, and to schedule the Veteran for examinations to assess the current severity of his service- connected hemorrhoids and left thumb disability. By a November 2007 rating decision, the RO reopened the previously denied claims for service connection for a gastrointestinal disability, skin cancer, and erectile dysfunction, but ultimately denied such claims on the merits; determining that new and material evidence was received to reopen service connection claims for a psychiatric disability, eye disability, right epididymitis, and degenerative arthritis of the back; denied entitlement to compensation under 38 U.S.C.A. § 1151 for psychiatric disability due to denial of VA Vocational and Rehabilitation benefits; denied entitlement to compensation under 38 U.S.C.A. § 1151 for psychiatric disability due to skin cancer surgery; denied entitlement to compensation under 38 U.S.C.A. § 1151 for right shoulder and right arm disability due to a fall in December 2003; and denied an effective date earlier than June 9, 1992, for the grant of compensation under 38 U.S.C.A. § 1151 for residual scar associated with right breast gynecomastia. The Veteran did not appeal this decision and it became final. The Veteran thereafter sought to reopen his previously denied service connection claims and also filed a service connection claim for a lung disability. By a March 2009 rating decision, the RO determined that new and material evidence had not been received to reopen service connection claims for skin cancer, degenerative arthritis of the back, a gastrointestinal disability, and a psychiatric disability, dental disability, right eye disability, erectile dysfunction, and right epididymitis; and denied service connection for a lung disability, and entitlement to compensation under 38 U.S.C.A. § 1151 for right shoulder disability, right arm disability, and fracture of the 6th rib due to a fall in December 2003. The RO also denied entitlement to compensation under 38 U.S.C.A. § 1151 for psychiatric disability due to denial of VA Vocational and Rehabilitation benefits and entitlement to compensation under 38 U.S.C.A. § 1151 for psychiatric disability due to skin cancer surgery (although these claims were mistakenly characterized as service connection claims). The Veteran expressed disagreement with the March 2009 rating decision, the RO issued a statement of the case in July 2009, and the Veteran subsequently perfected an appeal of the decision. In a July 2, 2010 decision, the Board declined to reopen the Veteran's previously denied claims for service connection and compensation pursuant to 38 C.F.R. § 1151; and denied his service connection and increased rating claims and requests for compensation pursuant to 38 C.F.R. § 1151. At that time, the Board also remanded his claim for service connection for a lung disorder to the RO for further development. In this decision, the Board vacates its July 2, 2010 decision and remand and dismisses the remaining appeal. FINDINGS OF FACT 1. The Veteran in this case served on active duty from April 1960 to August 1967. 2. On July 16, 2010, the Board was notified by the VA RO in Los Angeles that the appellant died in June 2010. CONCLUSIONS OF LAW 1. Due to the Veteran's death in June 2010, the Board decision issued on July 2, 2010 is a nullity and is vacated. 38 C.F.R. §§ 20.904, 20.1302 (2010). 2. Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this claim at this time. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2010); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104 (a) (West 2002); 38 C.F.R. § 20.904 (2010). In a July 2, 2010 decision, the Board declined to reopen the Veteran's previously denied claims for service connection skin cancer, degenerative arthritis of the back, a gastrointestinal disorder, a dental disorder, a right eye disorder, erectile dysfunction, right epididymitis; and for compensation pursuant to 38 C.F.R. § 1151 for a psychiatric disorder due to denial of VA Vocational and Rehabilitation benefits, a psychiatric disorder due to surgery for skin cancer, and a right shoulder disorder, right arm disorder, and 6th rib due to a fall in December 2003. The Board also denied his claims for service connection right-sided pain, a right nostril disability, residuals of left forearm burn scars, left breast cancer, right forearm disability, residuals of a right knee injury, residuals of a left foot laceration, residuals of a right thumb fracture; for compensation pursuant to 38 C.F.R. § 1151 for residuals of facial and dental trauma, a neck disorder, migraine headaches, seizures, a jaw disorder, a right eye disorder, and a posttraumatic stress disability, and for right shoulder and ankle and left elbow disorders; and the Veteran's claims for an increased rating for a left thumb laceration and a compensable evaluation for hemorrhoids. At that time, the Board remanded his claim for service connection for a lung disorder to the RO for further development. Unfortunately, the Veteran died prior to the Board's decision and remand. The Board passed away in June 2010 but the Board did not learn of his death until July 2010, several weeks after is issued its July 2, 2010 decision. 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). Because of the Veteran's death, the Board lacked jurisdiction to adjudicate the merits of the appeal and to issue the July 2, 2010 decision and remand. That decision and remand is hereby VACATED. Similarly, the Board must dismiss the underlying claims for lack of jurisdiction. See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2010). 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 (2010). 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 Board's July 2, 2010 decision and remand is vacated, and the appeal is dismissed. THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs