Citation Nr: 1801373 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 09-26 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability. 2. Entitlement to service connection for bilateral pulmonary emboli, to include as secondary to a service-connected disability. 3. Entitlement to service connection for right bundle branch block, to include as secondary to a service-connected disability. 4. Entitlement to service connection for renal insufficiency, to include as secondary to a service-connected disability. 5. Entitlement to an initial disability rating greater than 50 percent for service-connected posttraumatic stress disorder (PTSD) prior to July 30, 2015, and greater than 70 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his son ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from November 1968 to June 1970 and March 1971 to May 1976, to include a tour of duty in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2007 and April 2009 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Roanoke, Virginia. In December 2013, the Veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided in Washington, DC. A transcript of that hearing has been associated with his claims file. This matter was previously before the Board in August 2014 and April 2016 at which time it was remanded for additional development. It is now returned to the Board. During the pendency of this appeal, by rating action dated in July 2017, the RO determined that the Veteran's service-connected PTSD warranted an increased 70 percent disability rating, effective as of July 30, 2015. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran did not withdraw the appeal as to the issue of a disability rating greater than assigned, therefore, the issue remains in appellate status. The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. FINDING OF FACT On December 18, 2017, the RO was notified that the appellant died earlier in December 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. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017). 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, as to the issues of service connection for hypertension, bilateral pulmonary emboli, right bundle branch block, and renal insufficiency, each to include as secondary to a service-connected disability; and an increased disability rating for service-connected PTSD, has become moot by virtue of the death of the appellant 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 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) (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 appeals are dismissed. JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs