Citation Nr: 1802328	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  16-42 413	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1. Entitlement to service connection for fibrosing mediastinitis (claimed as due to an undiagnosed Gulf War illness).

2. Entitlement to service connection for tinnitus.

3. Entitlement to service connection for posttraumatic stress disorder (PTSD).

4. Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Agent John M. Dorle

ATTORNEY FOR THE BOARD

R. Janofsky, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1991 to February 1997.  During the pendency of this appeal, he died in November 2017. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran requested a Board videoconference hearing before a Veterans Law Judge (VLJ) in his July 2016 substantive appeal.  However, in correspondence received in January 2017, February 2017, and June 2017, the representative withdrew the Board hearing request.  Moreover, a November 2016 notice indicates that a requested RO hearing was scheduled for January 2017.  However, in correspondence received in January 2017, the representative requested the cancellation of that hearing.  

The Veteran also initiated an appeal of the issue of service connection for major depressive disorder with anxious distress.  The RO granted service connection for that condition in a January 2017 rating decision.  Because the Veteran was granted service connection for that disability, that issue is no longer on appeal.  See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

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) (West 2012).

FINDINGS OF FACT

1. In January 2017, February 2017, and October 2017 written and signed statements, the Veteran's representative expressly stated that the Veteran wished to withdraw the appeal as to the issue of entitlement to service connection for PTSD.

2. In December 2017, the Board was notified by the Department of Veterans Affairs (VA) Regional Office that the Veteran died in November 2017.


CONCLUSIONS OF LAW

1. The criteria for the withdrawal of the appealed issue of entitlement to service connection for PTSD have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017).

2. Due to the death of the Appellant, the Board has no jurisdiction to adjudicate the merits of the remaining issues on appeal at this time.  38 U.S.C. § 7104(a) (West 2012); 38 C.F.R. § 20.1302 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Withdrawn Issue

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105 (West 2012).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  Here, in January 2017, February 2017, and October 2017 written and signed statements, the Veteran's representative expressly stated that the Veteran wished to withdraw the appeal as to the issue of entitlement to service connection for PTSD.  Thus, there remain no allegations of errors of fact or law for appellate consideration as to that issue.  Accordingly, the Board does not have jurisdiction to review that issue, and it is dismissed.


II. Death Dismissal

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).  The remaining issues on appeal have 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) (West 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 (West 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 (West 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.



		
MICHELLE L. KANE
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs