Citation Nr: 1612896	
Decision Date: 03/30/16    Archive Date: 04/07/16

DOCKET NO.  09-26 722	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for left leg numbness.

2.  Entitlement to service connection for psychiatric disorder to include depression and posttraumatic stress disorder (PTSD) due to trauma and/or secondary to serviced-connected disabilities.

3.  Whether new and material evidence has been received to reopen the service connection claim for a heart disorder.

4.  Whether new and material evidence has been received to reopen the service connection claim for a back disorder.

5.  Whether new and material evidence has been received to reopen the service connection claim for a left knee disorder.

6.  Entitlement to an increased disability rating for tinnitus.

7.  Whether the reduction in the disability rating for service-connected bilateral hearing loss from 80 percent to 50 percent, effective January 1, 2009, was proper.

8.  Entitlement to compensation for a liver disorder pursuant to 38 U.S.C.A. § 1151.

9.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

B. Berry, Counsel


INTRODUCTION

The Veteran served on active duty from January 1976 to June 1976.

These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in July 2008, October 2008 and March 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

The Veteran testified during a hearing before the undersigned Veterans Law Judge in October 2014.  A transcript of the hearing is of record.

The Board denied the claims to reopen entitlement to service connection for a heart disorder, entitlement to an increased disability rating for tinnitus, and that the reduction in the disability rating from 80 percent to 50 percent for service-connected bilateral hearing loss, effective January 1, 2009, was improper in a January 2015 Board decision.  The Board remanded the remaining issues for further development in the January 2015 decision.  The Veteran appealed the January 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court) in April 2015.  The Veteran's attorney informed the Court in August 2015 that the Veteran died in June 2015.  The Court ordered the Veteran's attorney in August 2015 to provide a copy of the death certificate and to show cause why the January 2015 Board decision should not be vacated and the appeal dismissed.  In September 2015, the Veteran's attorney provided the Court with a copy of the death certificate and notified the Court that it could not provide cause as to why the appeal should not be dismissed as no person had been identified who meets the requirements of 38 U.S.C.A. § 5121A for the purposes of that appeal.  The Court vacated the January 2015 Board decision with respect to the matters appealed to the Court and dismissed the appeal for lack jurisdiction in an October 2015 Order.  


FINDING OF FACT

During the pendency of his appeal, the Veteran died in June 2015.


CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the claims on appeal at this time.  38 U.S.C.A. § 7104(a) (West 2014 & Supp. 2015); 38 C.F.R. § 20.1302 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the appellant died during the pendency of this 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 Veteran-Appellant's death and must be dismissed for lack of jurisdiction.  See 38 U.S.C.A. § 7104(a) (West 2014 & Supp. 2015); 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 these claims 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 & Supp. 2015); 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 & Supp. 2015); 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). 








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ORDER

The appeal is dismissed.




		
MILO H. HAWLEY
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs