Citation Nr: 1322045	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  09-37 789	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming

THE ISSUES

1.  Entitlement to an effective date earlier than May 24, 1996, for an initial 70 percent rating for left humeral head necrosis with a failed fusion associated with left hemidiaphragm paralysis and left phrenic nerve injury and a left rib removal.  

2.  Entitlement to an effective date earlier than April 20, 1982, for the grant of service connection and of a 30 percent rating for left hemidiaphragm paralysis and left phrenic nerve injury and a left rib removal.  

3.  Entitlement to an effective date earlier than April 20, 1982, for the grant of service connection and of a 20 percent rating for thoracic outlet syndrome of the left upper extremity.  

4.  Entitlement to an effective date earlier than April 20, 1982, for the grant of service connection and of a noncompensable rating for a right inguinal hernia.  

5.  Entitlement to an effective date earlier than April 20, 1982, for the grant of service connection and of a noncompensable rating for a scar from a medial sternotomy incision.  





REPRESENTATION

Veteran represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

S. D. Regan, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from April 1980 to April 1982.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decision in January 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). 

In October 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the Veteran's claims file.  

In a decision in February 2011, the Board denied the claims for an effective date earlier than May 24, 1996, for an initial 70 percent rating for left humeral necrosis with a failed fusion associated with left hemidiaphragm paralysis and left phrenic nerve injury and a left rib removal.  






The Board dismissed the claims for an effective date earlier than April 20, 1982, for the grant of service connection and of a 30 percent rating for left hemidiaphragm paralysis and left phrenic nerve injury and a left rib removal; an effective date earlier than April 20, 1982, for the grant of service connection and of a 20 percent rating for thoracic outlet syndrome of the left upper extremity; an effective date earlier than April 20, 1982, for the grant of service connection and of a noncompensable rating for a right inguinal hernia, and for an effective date earlier than April 20, 1982, for the grant of service connection and of a noncompensable rating for a scar from a medial sternotomy incision.  

The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In July 2012 in a Memorandum Decision, the Court affirmed in part the Board's decision on the denial of an effective date earlier than May 24, 1996, for an initial 70 percent rating for left humeral head necrosis with a failed fusion associated with left hemidiaphragm paralysis and left phrenic nerve injury and a left rib removal, but set aside the Board's implied finding that the effective date for the award of a total rating based on individual unemployability was correct.  

The Court set aside in part, the Board's determination that the Veteran had withdrawn the claims for earlier effective dates.  

In November 2012, the Court recalled its judgment of July 2012.  In January 2013, in an order, the Court dismissed the appeal, because the Veteran had died while the appeal was pending as evinced by a filing of a copy of a certified death certificate by counsel, who represented the Veteran before the Court.  






FINDING OF FACT

According to the records of the Social Security Administration, the Veteran died in March 2012, after the United States Court of Appeals for Veterans Claims (Court) affirmed, in part, the Board's decision in February 2011, denying an effective date earlier than May 24, 1996, for an initial 70 percent rating for left humeral necrosis with a failed fusion associated with left hemidiaphragm paralysis and left phrenic nerve injury and a left rib removal; and vacated and remanded, in part, the Board's decision, dismissing the claims for an effective date earlier than April 20, 1982, for the grant of service connection and of a 30 percent rating for left hemidiaphragm paralysis and left phrenic nerve injury and a left rib removal; an effective date earlier than April 20, 1982, for the grant of service connection and of a 20 percent rating for thoracic outlet syndrome of the left upper extremity; an effective date earlier than April 20, 1982, for the grant of service connection and of a noncompensable rating for a right inguinal hernia, and for an effective date earlier than April 20, 1982, for the grant of service connection and of a noncompensable rating for a scar from a medial sternotomy incision; and after the Veteran's death, the Court recalled judgment. 


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the claims pending before the Board, which were affirmed, in part, and vacated and remanded, in part, by United States Court of Appeals for Veterans Claims, as cited to in the Finding of Fact, after which the Court recalled judgment. 38U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 3.211, 20.1302 (2012); 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

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).

According to the records of the Social Security Administration, a Federal agency, the Veteran died in March 2012, while his appeal was before the United States Court of Appeals for Veterans Claims.  The Court had affirmed, in part, the Board's decision in February 2011, denying an effective date earlier than May 24, 1996, for an initial 70 percent rating for left humeral necrosis with a failed fusion associated with left hemidiaphragm paralysis and left phrenic nerve injury and a left rib removal; and vacated and remanded, in part, the Board's decision, dismissing the claims for an effective date earlier than April 20, 1982, for the grant of service connection and of a 30 percent rating for left hemidiaphragm paralysis and left phrenic nerve injury and a left rib removal; an effective date earlier than April 20, 1982, for the grant of service connection and of a 20 percent rating for thoracic outlet syndrome of the left upper extremity; an effective date earlier than April 20, 1982, for the grant of service connection and of a noncompensable rating for a right inguinal hernia, and for an effective date earlier than April 20, 1982, for the grant of service connection and of a noncompensable rating for a scar from a medial sternotomy incision.  After the Veteran's death, the Court recalled judgment. 

In the absence of evidence to the contrary, the Board accepts the finding by the Social Security Administration as proof of the Veteran's death during the pendency of the appeal.

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 must be dismissed for lack of jurisdiction. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302 (2012); 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 the 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 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 38 U.S.C.A. § 5121(a).

The Secretary of VA 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 claim for an effective date earlier than May 24, 1996, for an initial 70 percent rating for left humeral head necrosis with a failed fusion associated with left hemidiaphragm paralysis and left phrenic nerve injury and a left rib removal, is dismissed.  

The claim for an effective date earlier than April 20, 1982, for the grant of service connection and of a 30 percent rating for left hemidiaphragm paralysis and left phrenic nerve injury and a left rib removal, is dismissed.  

The claim for an effective date earlier than April 20, 1982, for the grant of service connection and of a 20 percent rating for thoracic outlet syndrome of the left upper extremity, is dismissed.  

	(The Order continues on the next page.).





The claim for an effective date earlier than April 20, 1982, for the grant of service connection and of a noncompensable rating for a right inguinal hernia, is dismissed.  

The claim for an effective date earlier than April 20, 1982, for the grant of service connection and of a noncompensable rating for a scar from a medial sternotomy incision, is dismissed.  



		
George E. Guido Jr.
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs