Citation Nr: 1803654	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  15-35 147	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to increased ratings for posttraumatic stress disorder (PTSD) with major depressive disorder with anxious presentation, currently rating 30 percent disabling prior to August 29, 2014, and 70 percent disabling thereafter.

2.  Entitlement to service connection for disability associated with shrapnel injury to the head.

3.  Entitlement to service connection for disability associated with shrapnel injury to the left shoulder.

4.  Entitlement to service connection for disability associated with shrapnel injury to the back.

5.  Entitlement to service connection for chloracne, to include as due to exposure to tactical herbicide agents.



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

A. Barone, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from January 1970 to August 1971.  These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2014 and December 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  The August 2014 rating decision assigned an initial 30 percent disability rating for newly service-connected PTSD.  The December 2014 rating decision denied service connection for chloracne as well as for disabilities associated with shrapnel injuries to the head, left shoulder, and back.  Notably, an October 2014 RO rating decision granted a higher 70 percent rating for PTSD effective from August 29, 2014; the Veteran maintained an appeal seeking higher rating assignments for PTSD prior to and following that date.

The Board notes that there has been some confusion regarding the Veteran's appointment of representation in this matter.  In February 2017, the Veteran submitted an executed VA 21-22 appointing the organization Veterans of Foreign Wars of the United States (VFW) as his representative (revoking prior appointments of representation in matters before VA).  In June 2017, VA received correspondence from a private attorney who had formerly been the Veteran's appointed representative before VA; the attorney believed that she remained the Veteran's appointed representative and submitted a copy of a VA Form 21-22a from December 2013 to confirm her appointment.  As the February 2017 appointment of VFW revoked the prior appointment of the private attorney, the Board has determined that VFW was the Veteran's established representative at the time of his death.


FINDING OF FACT

According to the Social Security Administration (SSA), the Veteran died in November 2017, before a decision by the Board as to the claims on appeal was promulgated.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of these claims 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.  79 Fed. Reg. 52,977, 52,984 (Sept. 5, 2014); 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 claims 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); 79 Fed. Reg. 52,977, 52,982 (Sept. 5, 2014); 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 79 Fed. Reg. 52,977, 52,982 (Sept. 5, 2014); 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).  79 Fed. Reg. 52,977, 52,982 (Sept. 5, 2014); 38 C.F.R. § 3.1010(b).


ORDER

The appeal is dismissed due to the Veteran's death.




______________________________________________
M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs