Citation Nr: 1315178 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 07-14 848 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include depression. 2. Entitlement to service connection for diabetes mellitus, type II. 3. Entitlement to a rating higher than 10 percent for gastric ulcer with upper gastrointestinal bleeding by history, hiatal hernia, status post surgery. 4. Entitlement to a rating higher than 10 percent for a right knee injury, status post surgery. 5. Entitlement to a rating higher than 10 percent for fungal infections of the groin, hands, and feet. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1973 to January 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In June 2010, the Veteran appeared at the RO and testified in a videoconference hearing before the undersigned Acting Veterans Law Judge, sitting in Washington, DC. A transcript of the hearing is of record. In a December 2010 decision, the Board determined that new and material evidence had been presented to reopen a claim of service connection for a psychiatric disorder, claimed as depression. The Board also remanded the case to the RO for further development on the reopened claim of service connection for a psychiatric disorder, claimed as depression, as well as the other four issues listed on the first page of this document. FINDING OF FACT In April 2013, the RO notified the Board that the Veteran died in December 2012, before a decision by the Board was promulgated on the appeal. CONCLUSION OF LAW Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the following claims at this time: service connection for a psychiatric disorder, to include depression; service connection for diabetes mellitus, type II; a rating higher than 10 percent for gastric ulcer with upper gastrointestinal bleeding by history, hiatal hernia, status post surgery; a rating higher than 10 percent for a right knee injury, status post surgery; and a rating higher than 10 percent for fungal infections of the groin, hands, and feet. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2011); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION According to a notice received from the RO in April 2013, the Veteran died in December 2012, before the Board promulgated a decision on the appeal. The record shows that in February 2013, the Veteran's representative notified the Board of the Veteran's death, as indicated by "[a]ll records and databases." In seeking confirmation of this, the Board received from the RO the results of an inquiry of a Veterans Health Administration database, which provided the date of the Veteran's death as well as the source of notification of the death (i.e., the next of kin/family/friend.) In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted as proof of death. 38 C.F.R. § 3.211(g). As there is no evidence to the contrary, the Board accepts the finding received from the RO as proof of the Veteran's death during the pendency of the appeal and before the Board promulgated a decision on the appeal of the following claims: service connection for a psychiatric disorder, to include depression; service connection for diabetes mellitus, type II; a rating higher than 10 percent for gastric ulcer with upper gastrointestinal bleeding by history, hiatal hernia, status post surgery; a rating higher than 10 percent for a right knee injury, status post surgery; and a rating higher than 10 percent for fungal infections of the groin, hands, and feet. As the Veteran died during the pendency of the appeal, as a matter of law the appeal does not survive the Veteran's death, and the appeal of the claims must be dismissed for lack of jurisdiction. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2011); Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Landicho v. Brown, 7 Vet. App. 42, 53-54 (1994). The Board's dismissal of the 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 claims to completion. Such request must be filed not later than one year after the date of the veteran's death. See Veterans Benefits Improvements Act of 2008, Pub. L. No.110- 3889, § 212, 112 Stat. 4145, 4151 (2009) (creating new 38 U.S.C.A. § 5121A, substitution in case of death of a claimant who dies on or as of 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 veteran should file a request for substitution with the VA regional office from which the claim originated (listed on the first page of this decision). ORDER The appeal of the claim for service connection for a psychiatric disorder, to include depression, is dismissed. The appeal of the claim for service connection for diabetes mellitus, type II, is dismissed. The appeal of the claim for a rating higher than 10 percent for gastric ulcer with upper gastrointestinal bleeding by history, hiatal hernia, status post surgery, is dismissed. The appeal of the claim for a rating higher than 10 percent for a right knee injury, status post surgery, is dismissed. The appeal of the claim for a rating higher than 10 percent for fungal infections of the groin, hands, and feet, is dismissed. ____________________________________________ SHEREEN M. MARCUS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs