Citation Nr: 18141250 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 07-09 289 DATE: October 10, 2018 ORDER 1. The appeal of entitlement to service connection for residuals of an injury of the right clavicle, claimed as a fracture of the right collar bone (other than a postservice injury of the right shoulder at a VA examination) is dismissed. 2. The appeal of entitlement to service connection for a lumbar spine disability, to include arthritis as due to inservice exposure to radiation and as secondary to the service-connected right and left knee disabilities is dismissed. 3. The appeal of entitlement to an initial rating for an adjustment disorder and a depressive disorder in excess of 30 percent from August 25, 2009, and in excess of 50 percent since September 22, 2016, is dismissed. 4. The appeal of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 22, 2016, is dismissed. FINDING OF FACT On September 25, 2018, the Board was notified by the Department of Veterans Affairs Regional Office, that the appellant died on September [redacted], 2018. CONCLUSION OF LAW Due to the death of the appellant, 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 The Veteran’s had active service from October 1967 to May 1971. This matter comes before the Board of Veterans’ Appeals (Board) from decisions in August 2005 and February 2010 of a Department of Veterans’ Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified at an RO videoconference before the undersigned Veterans Law Judge (VLJ) sitting in Washington, DC. A transcript of his testimony is associated with the electronic record. In June 2015, the Board found that the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was raised by the record. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) and Rice v. Shinseki, 22 Vet. App. 447 (2009). It was also noted that the issue of entitlement to a compensable rating for service-connected allergies had been raised by the record but not been adjudicated by the RO and, so, that matter was referred to the RO for appropriate action. In the June 2015 Board decision, the claims for service connection for a lumbar spine disability and residuals of a collar bone injury, as well as the claim for TDIU, were remanded. The June 2015 Board decision denied service connection for PTSD but granted service connection for an adjustment disorder and a depressive disorder. That decision denied a rating in excess of 20 percent for right knee arthritis and in excess of 10 percent for left knee arthritis on the basis of limitation of flexion or extension but granted separate 20 percent ratings for moderate instability of each knee. A September 2015 rating decision granted service connection for chronic sinusitis which was assigned an initial 30 percent rating, and also increased a noncompensable rating for allergic rhinitis to 30 percent. An October 2015 rating decision effectuated the June 2015 Board decision by granting service connection for an adjustment disorder which was assigned an initial noncompensable rating effective August 25, 2009; and assigned separated 10 percent ratings for instability of each knee, effective August 11, 2010 as to the right knee and March 4, 2010 as to the left knee. In December 2015 a Notice of Disagreement (NOD) was received as to the assignment of an initial noncompensable rating for service-connected adjustment disorder and depressive disorder. A January 2017 rating decision increased the noncompensable rating for an adjustment disorder with depressed mood to 30 percent effective August 25, 2009, and 50 percent as of September 22, 2016. A VA Form 21-0958, NOD was received after the January 2017 rating assignment of staged ratings for the service-connected psychiatric disorder. However, the appeal as to the proper disability rating(s) had already been initiated. Thus, the filing of an NOD after the increased staged ratings were granted in January 2017 was unnecessary because that matter remained in appellate status. AB v. Brown, 6 Vet. App. 35 (1993) (during an appeal the grant of less than a maximum rating does not moot the appeal). After a January 2017 Statement of the Case (SOC), the appeal was perfected by filing VA Form 9 in February 2017, in which a videoconference hearing was requested. A February 2017 rating decision denied a TDIU rating. In March 2017 VA Form 21-0958, NOD, was received as to that denial and in which there was a request for a hearing with a Decision Review Officer (DRO). However, an April 2017 rating decision granted a TDIU rating effective September 22, 2016, which constituted a full grant of that benefit only since September 22, 2016 and entitlement to a TDIU rating prior thereto remains on appeal. E-mail of April 4, 2017, from the office of the Veteran’s attorney stated that a DRO hearing would be waived “in lieu of the BVA hearing.” On June 12, 2017, addition evidence was received consisting of record of the King’s Daughters Medical Center and initial RO consideration of this evidence was waived. The Board must also address another matter. Historically, the Veteran did not appeal a September 2008 rating decision which denied entitlement to benefits under 38 U.S.C. § 1151 for disability of the right shoulder (other than residuals of a fracture of the right clavicle) on the basis of an injury during a March 2008 VA examination of the right shoulder. A June 2009 rating decision found that additional evidence had been submitted within one year of the September 2008 rating decision but confirmed and continued the denial. Although notified of that decision by letter of July 2, 2009, the Veteran did not appeal that decision. No additional evidence was received within one year of the June 2009 rating decision and it became final. At the April 2015 videoconference the Veteran testified that the March 2008 VA examiner “tore something. I made a claim, I went down and complained about it, but since that time on I've really had a lot of pain and now they're saying I have a torn rotator cuff [] And I'm going to have to have surgery.” Page 38. On October 4, 2016, VA Form 21-526b, Supplemental Claim for Compensation, was received, requesting a temporary total rating of 100 percent “for right shoulder surgery on 9/30/[20]16 at Adena Bone and Joint Center in Chillicothe, OH.” The RO interpreted the VA Form 21-526b, to be an application to reopen the claim for compensation under 38 U.S.C. § 1151. However, a January 2017 rating decision determined that a “claim for service connection for injury to right shoulder (other than right collar bone fracture) remains denied because the evidence submitted is not new and material.” In this regard, the Board notes that compensation under 38 U.S.C. § 1151, if determined to be warranted, is made “as if” the disability was service-connected. In any event, the text of the “Reasons for Decision” references a VA examination as not constituting new and material evidence and then continued by denying a claim for a temporary total rating because a service-connected disorder did not require surgery necessitating at least one month of convalescence. In this regard, entitlement to a temporary total rating based on need for convalescence, under 38 C.F.R. § 4.30, is predicated upon treatment for a disability which is compensated because it is either service-connected or compensated, as if service-connected, under 38 U.S.C. § 1151. The Veteran has never been service-connected for residuals of an injury of the right clavicle nor granted benefits under 38 U.S.C. § 1151, “as if service-connected” for any disability of the right shoulder including any injury stemming from a March 2008 VA examination. Thereafter, in August 2017 a VA Form 21-0958, NOD was received as to the January 2017 rating decision and requested a review of the claim under the “Decision Review Officer (DRO) Process.” By letter of August 23, 2017, the Veteran and his attorney were informed that a DRO would review the case and the DRO could request additional evidence, request an informal conference or make a decision in the case. An SOC was issued on September 24, 2018 (after the Veteran’s death) addressing this matter; however, no Substantive Appeal (VA Form 9 or equivalent) was received to perfect that appeal. To clarify, the January 2017 rating decision was a denial of reopening of a claim for entitlement to compensation under 38 U.S.C. § 1151, which is a potential predicate for any grant of a claim for a temporary total rating based on convalescence under 38 C.F.R. § 4.30, because there was no treatment for a disability which is compensated because it is either service-connected or compensated, as if service-connected, under 38 U.S.C. § 1151. The Board notes that in the VA Form 9 of February 2017 which perfected the appeal as to the claim for higher initial ratings for an adjustment disorder and a depressive disorder, it was requested that the Veteran be afforded a videoconference at a local VA RO. A letter from the Veteran’s attorney, dated May 9, 2018, requested either a travel Board hearing or videoconference, whichever was available first, as to the claim for an initial rating for an adjustment disorder and a depressive disorder in excess of 30 percent from August 25, 2009 and in excess of 50 percent since September 22, 2016. In VA Form 21-526b, Supplemental Claim for Compensation, if February 2018, the Veteran’s attorney set forth a claim for service connection for esophageal cancer. A May 2018 rating decision denied service connection for esophageal cancer. Received on July 20, 2018, was VA Form 21-0958, Notice of Disagreement (NOD) as to that denial, in which a Decision Review Officer (DRO) Review Process was requested. By letter of July 27, 2018, the RO acknowledged the NOD and the choice of a DRO Review Process. An SOC was issued on September 24, 2018 (after the Veteran’s death) addressing this matter; however, no Substantive Appeal (VA Form 9 or equivalent) was received to perfect that appeal. By a letter in June 2018 from the Veterans Law Judge that presided at the April 2015 videoconference, the Veteran’s attorney was informed that under 38 C.F.R. § 20.700(a) a claimant had a right to only one hearing, and in light of the April 2015 videoconference and in the absence of good cause a second hearing would not be scheduled. In a July 9, 2018 letter the Veteran’s attorney stated that a Board hearing was requested which addressed the issue in a January 26, 2017 SOC (which was the claim for higher initial ratings for an adjustment disorder and a depressive disorder). In this regard, the Board notes that the April 2015 videoconference addressed the matter of service connection for PTSD (which was denied by the Board in June 2015) and for an adjustment disorder and a depressive disorder (which was granted by the Board in June 2015). A July 17, 2018, Board letter stated that because the request for another hearing involved a separate issue, i.e., an increased rating for the service-connected psychiatric disorder, a hearing on that issue and for a TDIU rating prior to September 22, 2016, was granted. Also, by letter of July 17, 2018, the Veteran and his attorney were notified that a Board videoconference was scheduled for September 11, 2018. The Veteran and his attorney were reminded of the scheduled hearing by letter of August 20, 2018. By letter of August 15, 2018, to the Veteran and his attorney, they were informed of an informal conference which was held on August 15, 2018 with a VA DRO. The report of that informal conference noted that as to claims for service connection for a right shoulder disorder and for service connection for esophageal cancer, the Veteran withdrew his request for a formal hearing in favor of an informal telephonic conference. It was agreed to hold the record open for 30 days for submission of a statement from the Veteran’s spouse as to his claimed right shoulder disorder and that a private medical opinion would be submitted in support of the claim for esophageal cancer. Later in August 2018 three lay statements were received, including a statement from the Veteran’s spouse. By letter of August 30, 2018, the Veteran’s attorney withdrew the request for a Board hearing, which had been scheduled for September 11, 2018, and requested that the record be held open for 30 days to submit a brief. In September 2018 the Veteran’s attorney requested that the case be advanced on the docket because the Veteran had a terminal illness. Accordingly, the Veteran’s case has been advanced on the docket. This appeal was processed using the Veterans Benefits Management System (VBMS) and, in addition there is a Legacy (formerly Virtual VA) paperless claims electronic file. 1. The appeal of entitlement to service connection for residuals of an injury of the right clavicle, claimed as a fracture of the right collar bone (other than a postservice injury of the right shoulder at a VA examination) 2. The appeal of entitlement to service connection for a lumbar spine disability, to include arthritis as due to inservice exposure to radiation and as secondary to the service-connected right and left knee disabilities 3. The appeal of entitlement to an initial rating for an adjustment disorder and a depressive disorder in excess of 30 percent from August 25, 2009, and in excess of 50 percent since September 22, 2016 4. The appeal of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 22, 2016 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). 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. § 20.1302 (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; 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. 38 C.F.R. § 3.1010(b) (2017). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs