Citation Nr: 1333942 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-02 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right tennis elbow with degenerative changes. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 3. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from February 1949 to August 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, in January 2009 and April 2009. The former denied service connection for sleep apnea and a rating in excess of 10 percent for right tennis elbow with degenerative changes. The latter denied service connection for COPD. The RO in Houston, Texas, currently has jurisdiction of the claims. The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in June 2013. A transcript is of record. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. In June 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw his appeal for entitlement to a rating in excess of 10 percent for right tennis elbow with degenerative changes. 2. In October 2013, the Board was notified that the Veteran died in August 2013. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to a rating in excess of 10 percent for right tennis elbow with degenerative changes have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claim for service connection for COPD. 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). 3. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claim for service connection for sleep apnea. 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 CONCLUSIONS Increased rating claim Under 38 U.S.C.A. § 7105 (West 2002), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2012). In June 2013, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran's representative that the Veteran desired to withdraw his appeal for entitlement to a rating in excess of 10 percent for right tennis elbow with degenerative changes. As the appellant withdrew his appeal concerning this claim prior to his death, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal concerning this claim and it must be dismissed. Service connection claims The Veteran died during the pendency of the appeal concerning the claims for service connection for COPD and sleep apnea. 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). The appeal on the merits of these claims has become moot by virtue of the death of the Veteran 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 concerning the claims for service connection for COPD and sleep apnea does not affect the right of an eligible person to file a request to be substituted as the Veteran 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 for entitlement to a rating in excess of 10 percent for right tennis elbow with degenerative changes is dismissed. The appeal for entitlement to service connection for COPD is dismissed. The appeal for entitlement to service connection for sleep apnea is dismissed. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs