Citation Nr: 1805194	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  13-21 747A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES


1.  Entitlement to a rating in excess of 10 percent for tinnitus.  

2.  Entitlement to a compensable rating for a left ear hearing loss disability.  

3.  Entitlement to a compensable rating for malaria.

4.  Entitlement to a rating in excess of 10 percent for posttraumatic stress disorder (PTSD)/depression.

5.  Entitlement to a total rating based on unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Christopher L. Loiacono, Agent

WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Anderson, Counsel


INTRODUCTION

The Veteran had active service from January 1968 to August 1969. 

These matters come before the Board of Veterans' Appeals (Board) from December 2010 and June 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

These matters were previously before the Board in June 2017, when they were remanded for additional development. 

In November 2017, the Veteran testified at a video conference hearing before the undersigned Veterans' Law Judge.  A transcript of that hearing is of 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).


FINDINGS OF FACT

1.  At his November 2017 Board hearing, the Veteran withdrew from appellate review his claim of entitlement to a rating in excess of 10 percent for tinnitus.

2.  At his November 2017 Board hearing, the Veteran withdrew from appellate review his claim of entitlement to a compensable rating for a left ear hearing loss disability.

3.  At his November 2017 Board hearing, the Veteran withdrew from appellate review his claim of entitlement to a compensable rating for malaria.

4.  The Veteran died in December 2017.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of appeal as to the issue of entitlement to a rating in excess of 10 percent for tinnitus have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2.  The criteria for withdrawal of appeal as to the issue of entitlement to a compensable rating for a left ear hearing loss disability have been met.  38         U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

3.  The criteria for withdrawal of appeal as to the issue of entitlement to a compensable rating for malaria have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

4.  Due to the death of the Veteran, at this time, the Board has no jurisdiction to adjudicate the merits of his claims of entitlement to a rating in excess 10 percent   for PTSD/depression and entitlement to a TDIU. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. §§ 20.1106, 20.1302 (2017).






REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal 

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 (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 (2017).  Once the appeal is transferred to the Board, an appeal withdrawal is effective when it is received by the Board.  38 C.F.R. § 20.204(b)(3) (2017).

At his November 2017 hearing and, the Veteran requested to withdraw his increased rating claims for tinnitus, a left ear hearing loss disability, and malaria.  As the  Veteran withdrew the appeals on these issues on November 20, 2017, there remain    no allegations of error of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeals on these issues and they are dismissed.

Dismissal 

Unfortunately, subsequent to his Board hearing but prior to the adjudication of his remaining appeals, the Veteran died.  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).  Accordingly, these appeals on the merits have 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) (2014); 38 C.F.R. § 20.1302 (2017).

In reaching this determination, the Board intimates no opinion as to the merits of these appeals or to any derivative claims brought by a survivor of the Veteran.  38 C.F.R. § 20.1106 (2017). 

The Board's dismissal of these claims does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing these claims to completion.  See 38 U.S.C. § 5121A (2012); 38 C.F.R. §§ 3.1010, 20.1302 (2017); 79 Fed. Reg. 52982-84 (September 5, 2014).  A request for substitution must be filed with the Agency of Original Jurisdiction (AOJ) not later than one   year after the date of the Veteran's death.  38 C.F.R. §§ 3.1010(b), 20.1302(a) (2017).  If the AOJ grants the request to substitute, the case will assume its    original place on the Board's docket.  38 C.F.R. §§ 20.1302(a), 20.900(a)(2)   (2017).


ORDER

The appeal as to the issue of entitlement to a rating in excess of 10 percent for tinnitus is dismissed.

The appeal as to the issue of entitlement to a compensable rating for a left ear hearing loss disability is dismissed.

The appeal as to the issue of entitlement to a compensable rating for malaria dismissed. 

The appeal as to the issue of entitlement to a rating in excess of 10 percent for PTSD is dismissed. 

The appeal as to the issue of for entitlement to a TDIU is dismissed. 




____________________________________________
K. A. BANFIELD 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs