Citation Nr: 1800823	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  13-11 226	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to May 16, 2017, and in excess of 30 percent thereafter.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

A. Hemphill, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Army from August 1966 to December 1966 and in June 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2008 and August 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  The August 2008 rating decision denied service connection for PTSD.  Subsequently, in an August 2011 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for PTSD and assigned a 10 percent evaluation, effective March 3, 2008 (the initial date of the claim).  The Veteran appealed for a higher disability rating.

In November 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge and a transcript of the hearing is of record.  Subsequently, in April 2017, the Board remanded the matter for additional development.  

In August 2017, the RO awarded an increased 30 percent rating effective May 16, 2017.  Because this award does not represent the highest possible rating available under the Rating Schedule for this disability, and the Veteran has indicated that he is not content with the new rating or its effective date, his increased rating claim remains on appeal.



FINDING OF FACT

The Veteran died in October 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, Veterans' 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.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 (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 Veteran 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.A. § 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.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) (2017). 


ORDER

The appeal is dismissed.



____________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs