Citation Nr: 1337578 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 09-07 854 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent disabling, for the period prior to June 17, 2003 and in excess of 20 percent disabling, for the period beginning June 17, 2003, for residuals, fracture left distal radius and ulna. 2. Entitlement to service connection for a skin disorder, including chloracne, to include as secondary to herbicide exposure during service. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active duty service from June 1967 to April 1970 and from April 1975 to April 1978. The Veteran's service personnel records demonstrate that he served in the Republic of Vietnam in 1967 and 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2003 and July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In September 2011 the Board noted that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. As such, in September 2011, the Board recharacterized the issue of entitlement to service connection for chloracne as entitlement to service connection for a skin disorder, including chloracne, to include as secondary to herbicide exposure during service. The Veteran testified at a hearing before an Acting Veterans Law Judge in July 2011; a transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. In April 2006, prior to the promulgation of a decision in the appeal of the issue of entitlement to an evaluation in excess of 10 percent disabling, for the period prior to June 17, 2003 and in excess of 20 percent disabling, for the period beginning June 17, 2003, for residuals, fracture left distal radius and ulna, the Board received notification from the appellant that a withdrawal of this appeal was requested. 2. In September 2013 the Board was notified that the appellant died in August 2013. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to an evaluation in excess of 10 percent disabling, for the period prior to June 17, 2003 and in excess of 20 percent disabling, for the period beginning June 17, 2003, for residuals, fracture left distal radius and ulna, by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the claim of entitlement to service connection for a skin disorder, including chloracne, to include as secondary to herbicide exposure during service, at this time. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2013); 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 dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, in a statement received in April 2006 the appellant withdrew the appeal of the issue of entitlement to an evaluation in excess of 10 percent disabling, for the period prior to June 17, 2003 and in excess of 20 percent disabling, for the period beginning June 17, 2003, for residuals, fracture left distal radius and ulna and, hence, there remain no allegations of errors of fact or law for appellate consideration in regard to this issue. Accordingly, the Board does not have jurisdiction to review the appeal of the issue of entitlement to an evaluation in excess of 10 percent disabling, for the period prior to June 17, 2003 and in excess of 20 percent disabling, for the period beginning June 17, 2003, for residuals, fracture left distal radius and ulna and it is dismissed. Unfortunately, thereafter, 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). The appeal on the merits of the issue of entitlement to service connection for a skin disorder, including chloracne, to include as secondary to herbicide exposure during service, 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 (2013). 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 (2013). 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 appeal of the issue of entitlement to an evaluation in excess of 10 percent disabling, for the period prior to June 17, 2003 and in excess of 20 percent disabling, for the period beginning June 17, 2003, for residuals, fracture left distal radius and ulna, is dismissed. The appeal of the issue of entitlement to service connection for a skin disorder, including chloracne, to include as secondary to herbicide exposure during service, is dismissed. M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs