Citation Nr: 1327377	
Decision Date: 08/27/13    Archive Date: 09/05/13

DOCKET NO.  10-03 300	)	DATE
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in San Diego, California


THE ISSUES

1.  Entitlement to an initial rating greater than 50 percent for posttraumatic stress disorder (PTSD) for the period from September 25, 2006 to November 16, 2009.

2.  Entitlement to an initial rating greater than 70 percent for PTSD for the period since November 17, 2009.

2.  Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected PTSD, prior to November 25, 2009.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel


INTRODUCTION

The Veteran served on active duty from November 1965 to August 1967.

This appeal to the Board of Veterans' Appeals (Board) arose from an October 2007 rating decision in which the RO, inter alia, granted service connection for PTSD and assigned an initial 50 percent rating effective September 25, 2006.  In September 2008, the Veteran filed a notice of disagreement (NOD) limited to the initial rating assigned for PTSD.  A statement of the case (SOC) was issued in November 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2010. 

In an October 2011 decision, the RO awarded an initial 70 percent rating for PTSD effective November 17, 2009.  Because the Veteran had disagreed with the initial rating assigned for PTSD following the award of service connection, and the fact that the RO assigned different disability ratings for different time periods, the Board has characterized these claims in light of Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability, and requiring the consideration of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found)).

The Board further notes that, in pursuing a higher initial rating for PTSD, the Veteran had alleged that his PTSD rendered him unable to secure and maintain substantially gainful employment which reasonably raised the issue of entitlement to TDIU.  See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (once a claimant submits evidence of medical disability, makes a claim for highest possible rating, and submits evidence of unemployability, an informal claim is raised under 38 C.F.R. § 3.155(a)).  

In a rating decision dated June 2012, the RO awarded TDIU effective November 25, 2011.  The matter of the Veteran's entitlement to a TDIU due to PTSD was essentially, a component of his claim for a higher initial rating for PTSD appealed to the Board-inasmuch as he was seeking either the maximum, 100 percent rating, or, alternatively, a TDIU, from the earliest possible date.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  See generally Veteran's NOD received September 2009).  Therefore, inasmuch as a TDIU may have been available prior to November 25, 2011, and a claimant is presumed to seek the maximum available benefit for a disability, the Board has characterized the appeal as also encompassing the matter of the Veteran's entitlement to a TDIU prior to November 25, 2011.  See Fenderson, 12 Vet. App. at 126; AB v. Brown, 6 Vet. App. 35, 38 (1993). 


FINDINGS OF FACT

1.  The Veteran in this case served on active duty from November 1965 to August 1967.

2.  On August 16, 2003, the Board was notified by the Social Security Administration that the appellant died on June [redacted], 2013.


CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 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 FINDINGS AND CONCLUSION

Unfortunately, the appellant died during the pendency of the appeal.  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).  This appeal on the merits has become moot by virtue of the death of the appellant and must be dismissed for lack of jurisdiction.  See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012).

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 (2012).  

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 RO from which the claim originated (listed on the first page of this decision).  



ORDER

The appeal is dismissed.




		
JACQUELINE E. MONROE
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs