Citation Nr: 1802092	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  15-00 721A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a rating in excess of 10 percent for restrictive airway disease.


REPRESENTATION

Veteran represented by:	Carl K. Price, Agent


ATTORNEY FOR THE BOARD

T. Carter, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from August 1979 to January 1981 and in the United States Army from February 1982 to August 1982, February 1985 to September 1985, November 1990 to May 1991, June 1991 to June 1992, May 1993 to September 1993, May 1996 to August 1996, and January 1997 to October 1997.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  During the course of the appeal, the claims file was transferred to the RO in St. Petersburg, Florida.

In the January 2015 substantive appeal, VA Form 9, the Veteran requested a video conference hearing before the Board.

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


FINDING OF FACT

The VA has been notified that 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 claim at this time.  38 U.S.C. §§ 5121A, 7104(a) (2012); 38 C.F.R. §§ 3.1010, 20.1106, 20.1302 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this case, the issue of entitlement to a rating in excess of 10 percent for restrictive airway disease was the only issue certified to the Board in October 2016, as noted in a VA Form 8.

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 claim on appeal 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 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 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. § 5121A; 38 C.F.R. § 3.1010(b).  


ORDER

The appeal is dismissed.



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


Department of Veterans Affairs