Citation Nr: 1524884 Decision Date: 06/10/15 Archive Date: 06/19/15 DOCKET NO. 02-18 831 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an earlier effective date than March 9, 2001, for a grant of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 17, 2012. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran (also referred to herein as 'appellant') had active service from October 1961 to October 1963 and from November 1963 to September 1966. He also had a period of active duty for training in the Oklahoma Army National Guard (ANG) between August 1960 and February 1961. The issue of entitlement to an earlier effective for the grant of service connection for PTSD comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted the Veteran's claim of service connection for PTSD, assigning a 30 percent rating effective March 9, 2001. The Veteran and his wife testified at a Board hearing at the local RO before the undersigned Veterans Law Judge in October 2006. This matter also is on appeal from a February 2007 rating decision in which the RO denied the Veteran's claim for an earlier effective date than March 9, 2001, for the grant of service connection for PTSD. In April 2007 and in May 2009, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. In December 2010, the Board denied the Veteran's claim. The Veteran, through his attorney, and VA's Office of General Counsel filed a Joint Motion for Remand (Joint Motion) with the United States Court of Appeals for Veterans Claims (Court). In August 2011, the Court granted the Joint Motion and vacated and remanded the Board's December 2010 decision. In November 2012, the Board again denied the Veteran's claim as well as the issue of entitlement to service connection for hypertension. The Veteran, through his attorney, and VA's Office of General Counsel again filed a Joint Motion for Remand (Joint Motion) with the Court. The Joint Motion stated that the portion of the Board's decision that denied service connection for hypertension was not contemplated by this motion and should therefore remain undisturbed. In July 2013, the Court granted the Joint Motion and vacated and remanded the Board's November 2012 decision with respect to the issue of an earlier effective date for PTSD. In the November 2012 decision, the Board also remanded the issue of entitlement to a TDIU. In an April 2013 rating decision, the RO awarded a TDIU, effective December 17, 2012. The Veteran submitted a notice of disagreement to the effective date assigned in July 2013. The RO issued a statement of the case in October 2013, and the Veteran submitted a substantive appeal, through his representative, in December 2013. The Board also notes that Veteran submitted a notice of disagreement in December 2013 to the denial of special monthly compensation based on the need for aid and attendance and/or housebound status, which was denied in an October 2013 rating decision. It does not appear that the RO issued a statement of the case with respect to this matter. As such, the appeal was not certified to the Board prior to his death. As a final preliminary matter, the Board notes that this appeal was processed using the paperless, electronic Virtual VA and Veterans Benefit Management System (VBMS) paperless claims processing systems. FINDING OF FACT On May 28, 2015, the Board was notified by the Department of Veterans Affairs (VA) Regional Office, Muskogee, Oklahoma, that the appellant died in May 2015. 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 2014); 38 C.F.R. § 20.1302 (2014); but see 38 U.S.C.A. § 5121A (West 2014); 79 Fed. Reg. 52,977 (Sept. 5, 2014) (to be codified at 38 C.F.R. pts. 3, 14, and 20). REASONS AND BASES FOR FINDING 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 2014); 79 Fed. Reg. 52,977, 52,984 (Sept. 5, 2014) (to be codified at 38 C.F.R. § 20.1302). 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. 79 Fed. Reg. 52,977, 52,984 (Sept. 5, 2014) (to be codified at 38 C.F.R. § 20.1106). 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 38 U.S.C.A. § 5121A (West 2014); 79 Fed. Reg. 52,977, 52,982 (Sept. 5, 2014) (to be codified at 38 C.F.R. § 3.1010(b)). A person eligible for substitution includes "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ...." 38 U.S.C.A. § 5121A (West 2014); see 79 Fed. Reg. 52,977, 52,982 (Sept. 5, 2014) (to be codified at 38 C.F.R. § 3.1010(a)). 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 office from which the claim originated (listed on the first page of this decision). 79 Fed. Reg. 52,977, 52,982 (Sept. 5, 2014) (to be codified at 38 C.F.R. § 3.1010(b)). ORDER The appeal is dismissed. MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs