Citation Nr: 1611979	
Decision Date: 03/24/16    Archive Date: 03/29/16

DOCKET NO.  09-48 940	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an increased rating for chondromalacia of the left knee, evaluated as 10 percent disabling prior to April 21, 2015, and 20 percent disabling since then.
 
2.  Entitlement to an increased rating for a right knee replacement due to a history of chondromalacia and degenerative arthritis, evaluated as 30 percent disabling prior to April 21, 2015, and 60 percent disabling since then.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

Shauna M. Watkins, Counsel


INTRODUCTION

The Veteran had active service from September 1969 to September 1971.  He served in Vietnam and earned the Purple Heart and Combat Infantryman Badge. 

This appeal comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, denied increased ratings for the right and left knee disabilities.  

The Veteran appeared at a hearing before the undersigned in January 2015.  A transcript is in the record.

In February 2015, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development.  Upon remand, the AMC issued a rating decision in May 2015, which increased the left knee disability rating to 20 percent, retroactively effective from April 21, 2015.  The AMC issued another rating decision in August 2015, which increased the right knee disability rating to 60 percent, retroactively effective from April 21, 2015.  The Veteran continued to appeal, requesting even higher disability ratings.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise).
The appeal has now been returned to the Board for appellate disposition. 

The RO granted service connection for the bilateral hip disability, granted a temporary total rating based on the need for convalescence following surgery for replacement of the right hip, and granted a total rating based on individual unemployability due to service connected disabilities (TDIU) in a May 2015 rating decision.  This is considered a complete grant of the benefits sought with regard to those issues.

FINDING OF FACT

On February 29, 2016, the Department of Veterans Affairs (VA) Regional Office, in St. Paul, Minnesota, was informed by the Veteran's spouse that the Veteran died in February 2016.


CONCLUSION OF LAW

Due to the death of the Veteran, 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 (2015). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran 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 Veteran and must be dismissed for lack of jurisdiction.  See 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2015).

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 (2015).  

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); 38 C.F.R. § 3.1010(b) (2015).  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 38 C.F.R. § 3.1010(a) (2015).  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).  38 C.F.R. § 3.1010(b) (2015). 


ORDER

The appeal is dismissed.



		
Mark D. Hindin
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs