Citation Nr: 1644437	
Decision Date: 11/23/16    Archive Date: 12/02/16

DOCKET NO.  12-11 010	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Samuelson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1940 to August 1946, including combat service in World War II.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  The August 2015 Board decision increased the Veteran's disability evaluation for PTSD to 50 percent.  A September 2015 rating decision determined the 50 percent disability evaluation for PTSD was effective July 23, 2010.

In his April 2012 VA Form 9, the Veteran requested the opportunity to testify at a Travel Board hearing.  The hearing was scheduled for March 2015, and the appellant was notified in writing in advance of the date, time, and location of his requested hearing.  He did not appear for that hearing and has offered no cause for his failure to appear.  The hearing request therefore is deemed withdrawn.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to a disability rating in excess of 50 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

On November 18, 2016, the Board was notified by the Department of Veterans Affairs (VA) Regional Office, Roanoke, Virginia, that the appellant died in September 2016.


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 (2015). 



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); 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.


		
STEVEN D. REISS
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs