Citation Nr: 1804824	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  15-08 456	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity.

2. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity.

3. Entitlement to a rating in excess of 20 for degenerative lumbar disc disease (a low back disability).

4. Entitlement to service connection for fatigue.

5. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for joint pain in the bilateral hands, claimed as due to the bends or dysbaric osteonecrosis.

6. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for joint pain in the bilateral hips, claimed as due to the bends or dysbaric osteonecrosis.

7. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for joint pain in the bilateral shoulders, claimed as due to the bends or dysbaric osteonecrosis.

8. Whether the Veteran's widow meets the basic eligibility requirements to substitute for the Veteran with regard to the service connection claims.


REPRESENTATION

Appellant represented by:	Kenneth Lavan, Esquire


ATTORNEY FOR THE BOARD

M. Thomas, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1960 to July 1970.  He died in November 2017.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2011 and October 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In July 2011, the RO denied entitlement to a rating in excess of 20 percent for a low back disability.

In October 2012, the RO increased the Veteran's ratings for right and left lower extremity radiculopathy from 10 percent to 20 percent, denied entitlement to service connection for fatigue, and denied reopening the previously denied claims for service connection for joint pain in the bilateral hips, hands, and shoulders. 

The Veteran testified at the RO before a Decision Review Officer (DRO) in June 2014.  A copy of the DRO hearing report has been associated with the record.

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) (2012).

As the appeal is being dismissed without prejudice, and as the Veteran's widow has filed an application for substitution, the matters inherent to the application for substitution are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).  


FINDING OF FACT

In November 2017,  VA was notified that the Veteran died earlier that month.


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, who is the appellant in this case, 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 appellant and must be dismissed for lack of jurisdiction.  See 38 U.S.C. § 7104(a) (2012); 38 C.F.R. §§ 20.900, 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 (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 (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). 

If the AOJ grants the request to substitute, then the case returns to the same place on the Board's docket that it held at the time of the Veteran's death.  38 C.F.R. 
§§ 20.1302, 20.900; Natl Org. of Veterans Advocates, Inc. v. Sec'y of VA, 809 F.3d 1359 (2016).


ORDER

The appeal is dismissed.


REMAND

In November 2017, the Veteran's widow submitted an application to substitute for her deceased husband in this matter; however, the RO has not yet reviewed this request.  The Board does not have jurisdiction to make determinations regarding basic eligibility to substitute in the first instance.  38 U.S.C. § 7104; 38 C.F.R. 
§ 20.101(a).  Therefore, remand is required to afford the RO the opportunity to adjudicate the application to substitute. 

The Board notes that in December 2017 the Veteran's widow executed a power-of attorney in favor of the American Legion.

In addition to the issues listed on the first page of this decision, the Veteran also submitted a July 2016 timely notice of disagreement with the RO's July 2016 rating decision that denied service connection for asbestosis.  To date, a statement of the case (SOC) has not been issued as it relates to this issue.  If the Veteran's widow is substituted for her deceased husband in this matter, the RO should issue a SOC.  This matter is not before the Board at this time, and will only be before the Board if the Veteran's widow's application to substitute is granted and she timely files a substantive appeal of the issue after a SOC is issued.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Issue a rating decision adjudicating whether the Veteran's widow meets the basic eligibility requirements to substitute for the Veteran with regard to the service connection claims.  

2. If the widow's application to substitute is granted, the following actions should be taken:

a) This appeal should be returned to the same place on the Board's docket that it held at the time of the Veteran's death.  

b) Issue a SOC on the issue of entitlement to service connection for asbestosis.  The substituted appellant and her representative should be advised of the time limit for perfecting an appeal, and afforded such period of time to do so.  If she timely perfects an appeal in the matter, it should be returned to the Board.

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs