Citation Nr: 1804426	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  12-00 753	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to a higher (compensable) initial disability rating (or evaluation) for chronic dermatitis. 


REPRESENTATION

Veteran represented by:	Robert W. Gillikin II, Attorney


ATTORNEY FOR THE BOARD

Patricia Kingery, Associate Counsel






INTRODUCTION

The Veteran, who is the appellant in this case, had active service from October 1966 to October 1968.  

This appeal comes to the Board of Veterans' Appeals (Board) from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which, implementing a December 2013 Board decision to grant service connection for chronic dermatitis, assigned a noncompensable (0 percent) initial disability rating, effective October 6, 2004 because a claim for service connection for a skin disorder had been received in October 2004.

In February 2017, the Board, in pertinent part, stayed action on the issue on appeal in accordance with the U.S. Court of Appeals for Veterans Claims (Court) stay on issues that may be affected by resolution of VA's then appeal in Johnson v. McDonald, 27 Vet. App. 497 (2016), which was subsequently reversed and remanded by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017).


FINDING OF FACT

Prior to adjudication by the Board, VA was notified that the Veteran died in November 2017.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the Veteran's appeal on the issue of a higher (compensable) initial disability rating for chronic dermatitis.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. 
§ 20.1302 (2017); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this case, the Veteran had the above stated claim pending on appeal before the Board when he died in November 2017.  Prior to adjudication of the issue by the Board, VA was notified of the Veteran's death.  As a matter of law, veterans' 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) (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 Veteran'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; 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 Veteran's appeal is dismissed.



		
J. Parker
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs