Citation Nr: 1746931	
Decision Date: 10/20/17    Archive Date: 10/31/17

DOCKET NO.  14-29 388		DATE
		

THE ISSUE

Entitlement to an initial compensable rating for bilateral non-proliferative diabetic retinopathy.


ORDER

The appeal is dismissed.


FINDING OF FACT

On June 20, 2017, the Board was notified by the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois, that the appellant died in June 2017.


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 (2016). 




REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran, who is the appellant in this case, served on active duty from May 1967 to November 1970, including service in Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted service connection for diabetic retinopathy as secondary to service-connected diabetes mellitus, type II, assigning a noncompensable (zero percent) rating effective December 10, 2010.

In August 2014, the Veteran notified the Board that he did not want a Board hearing.

Increased rating for diabetic retinopathy

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 (2016).

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 (2016).  

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) (2016).  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) (2016).  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) (2016). 



______________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals

ATTORNEY FOR THE BOARD	N. Nelson, Associate Counsel

Copy mailed to:  Vietnam Veterans of America



Department of Veterans Affairs