Citation Nr: 1800653	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-42 374	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an initial disability rating in excess of 20 percent for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Penelope E. Gronbeck, Attorney


ATTORNEY FOR THE BOARD

M. Salazar, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1960 to August 1960.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 Decision Review Officer (DRO) decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted the Veteran service connection for bilateral hearing loss (assigning a 20 percent disability rating, effective from February 13, 2012).  When, as here, 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, 38 (1993).  

The Veteran requested a hearing before the Board.  See November 2014 Form VA 9.  However, in August 2017, the Veteran's representative submitted a statement indicating that the Veteran wished to withdraw his hearing request.  Accordingly, the Veteran's hearing request is withdrawn.  38 C.F.R. § 20.702(d) (2017).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

On November 27, 2017, VA was notified that the Veteran died on November [REDACTED], 2017.  


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. § 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, 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. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017).

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 (2017).  

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 Veteran'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) (2017).  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) (2017). 


ORDER

The appeal is dismissed.




		
KRISTI L. GUNN
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs