Citation Nr: 1754541	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  16-46 086	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an initial disability evaluation in excess of 50 percent for an unspecified depressive disorder. 


REPRESENTATION

Veteran represented by:	Jan Dils, Attorney 


ATTORNEY FOR THE BOARD

B. Riordan, Associate Counsel


INTRODUCTION

The Veteran served on active duty with the United States Air Force from May 1977 to May 1981, and again from December 1981 to December 1986.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia in which the Veteran was granted service connection and a 30 percent disability evaluation for an unspecified depressive disorder. 

The Veteran's disability evaluation for unspecified depressive disorder was increased to 50 percent in a July 2016 rating decision.  When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded.  See AB v. Brown, 6 Vet. App. 35 (1993).


FINDING OF FACT

In October 2017, the VA became aware the Veteran died in September 2017.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal at this time.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, Veterans' claims do not survive their deaths.  Smith v. Brown, 10 Vet. App. 330, 333-34 (1997).  Thus, the claims on appeal have become moot by virtue of the death of the Veteran and must be dismissed for lack of jurisdiction.  See 38 U.S.C. § 7104(a); 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.  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. § 5121A (2012); 38 C.F.R. § 3.1010(b) (2017).  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. § 5121A (2012); see 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).  38 C.F.R. § 3.1010(b).


ORDER

The Veteran's appeal is dismissed.




____________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs