Citation Nr: 1801635	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  15-06 496A	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Whether a statement received on February 28, 2010 should be construed as a notice of disagreement with an August 2009 rating decision denying an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Michael Miskowiec, Attorney at Law


ATTORNEY FOR THE BOARD

K. Marenna, Counsel



INTRODUCTION

The Veteran served on active duty from April 1965 to April 1968 and from July 1973 to June 1977.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 


FINDING OF FACT

On December 15, 2017, VA was notified by the Veteran's attorney that the Veteran died on December [REDACTED], 2017, and his death has been verified by VA through Social Security Administration data.  


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); 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. § 5121; 38 C.F.R. § 3.1010(b).  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; 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 appeal is dismissed.



		
M. SORISIO
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs