Citation Nr: 18143283 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 14-09 438 DATE: October 18, 2018 ORDER The decision issued by the Board of Veterans’ Appeals on June 19, 2018 is vacated. Entitlement to service connection for a neck condition is dismissed. Entitlement to service connection for a back condition is dismissed. Entitlement to service connection for chronic fatigue syndrome (CFS) is dismissed. Entitlement to service connection for a separate disability characterized by dizziness is dismissed. Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD) with depressive disorder not otherwise specified to include the propriety of the reduction of the evaluation from 50 percent to 30 percent disabling effective June 1, 2014 is dismissed. Entitlement to a total disability rating due to individual unemployability (TDIU) is dismissed. VACATE The Board of Veterans’ Appeals (Board) may vacate an appellate decision at any time upon the request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104; 38 C.F.R. § 20.904 (2018). These matters were previously before the Board, and, on June 19, 2018, the Board issued an opinion deciding/remanding these matters. On June 21, 2018, the Department of Veteran’s Affairs (VA) received information that the Veteran had passed away, and VA requested that the surviving relatives contact VA to confirm the Veteran’s passing. Subsequently, VA received information that the Veteran had passed away in early June 2018. As discussed below, the Board should have dismissed the Veteran’s case rather than deciding/remanding of it, and, therefore, the Board vacates the June 2018 Board decision in order to review the case de novo. FINDING OF FACT VA has been notified that the Veteran died in early June 2018. 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 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1988 to February 1992. These matters come to the Board on appeal from rating decisions of the VA Regional Office (RO) in Salt Lake City, Utah, in November 2013 and March 2014 as well as a rating decision in October 2016. In February 2015, the Veteran and his longterm partner testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. The Board notes that – with the exception of entitlement to TDIU – all of the issues currently before the Board were previously remanded, by the Board in January 2016, for further development. With the exception of entitlement to service connection for a neck condition, development in substantial compliance with the Board’s remand instructions has been completed. The Board notes that the issue of entitlement to service connection for fibromyalgia (originally characterized as fibromyositis including sore joints, muscle spasm, and numbness of the arms and legs) was previously before the Board and remanded for further development. In June 2016, however, the RO granted service connection for fibromyalgia. As this was a full grant of the Veteran’s entire requested prayer of relief, the Board shall not address this issue any further. The Board notes that, on June 26, 2018, the Veteran’s representative filed a claim attempting to assert that clear and unmistakable error (CUE) existed in the June 2018 Board decision. Unfortunately, as the Veteran has passed away and a surviving relative has not been substituted as an appellant, the Veteran’s representative no longer has standing to challenge the decision. Moreover, as the June 2018 Board decision/remand has been vacated, the challenge is moot anyway. Therefore, the Board shall not address the issue any further. The issues of entitlement to service connection for a neck condition, a back condition; CFS; a separate disability characterized by dizziness; entitlement to an increased disability rating for PTSD with depressive disorder not otherwise specified, to include the propriety of the reduction of the evaluation from 50 percent to 30 percent disabling effective June 1, 2014; and entitlement to TDIU are dismissed. Unfortunately, the Veteran died during the pendency of the appeal. 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. 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. 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 claim to completion. Such request must be filed not later than one year after the date of the appellant’s death. 38 U.S.C. § 5121A; 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; 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 (CONTINUED ON NEXT PAGE) should file a request for substitution with the VA office from which the claim originated. 38 C.F.R. § 3.1010(b). BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel