Citation Nr: 18143668 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-12 627 DATE: October 23, 2018 ORDER Whether new and material evidence has been received to reopen the claim for service connection for a low back disorder is dismissed without prejudice. Entitlement to service connection for hypertension is dismissed without prejudice. Entitlement to service connection for peripheral neuropathy of the left lower extremity is dismissed without prejudice. Entitlement to service connection for peripheral neuropathy of the right lower extremity is dismissed without prejudice. Entitlement to service connection for an acquired psychiatric disorder is dismissed without prejudice. Entitlement to a rating greater than 30 percent for a heart disability is dismissed without prejudice. Entitlement to a total rating for compensation purposes based on unemployability due to service-connected disabilities (TDIU) is dismissed without prejudice. FINDINGS OF FACT 1. The Veteran had several appeals pending at the time of his death in May 2014. 2. In June 2014, his surviving spouse filed a claim for accrued benefits, which the RO also considered to be a request for substitution. 3. There is no decision for record to show that the Agency of Original Jurisdiction (AOJ) has made a formal substitution determination. CONCLUSIONS OF LAW 1. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeals for new and material evidence to reopen the claim for service connection for a low back disorder. 38 U.S.C. §§ 5121, 7104(a) (2012); 38 C.F.R. 3.1010, 20.1302 (2018). 2. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal for entitlement to service connection for hypertension. 38 U.S.C. §§ 5121, 7104(a) (2012); 38 C.F.R. 3.1010, 20.1302 (2018). 3. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal for entitlement to service connection for left lower extremity peripheral neuropathy. 38 U.S.C. §§ 5121, 7104(a) (2012); 38 C.F.R. 3.1010, 20.1302 (2018). 4. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal for entitlement to service connection for right lower extremity peripheral neuropathy. 38 U.S.C. §§ 5121, 7104(a) (2012); 38 C.F.R. 3.1010, 20.1302 (2018). 5. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal for entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 5121, 7104(a) (2012); 38 C.F.R. 3.1010, 20.1302 (2018). 6. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal for entitlement to a rating greater than 30 percent for a heart disability. 38 U.S.C. §§ 5121, 7104(a) (2012); 38 C.F.R. 3.1010, 20.1302 (2018). 7. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal for entitlement to a TDIU. 38 U.S.C. §§ 5121, 7104(a) (2012); 38 C.F.R. 3.1010, 20.1302 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to May 1968. He died in May 2014 and the appellant is his surviving spouse. In March 2011 and January 2013, the Veteran was denied several claims for benefits. In September 2011 and April 2013, he filed timely notices of disagreement. The Veteran died before a statement of the case could be issued. In June 2014, the appellant filed a claim for DIC and accrued benefits. A July 2014 rating decision granted service connection for the cause of the Veteran’s death, but it did not address the accrued benefits claims. This is referred to the RO for any appropriate action. In a March 2015 substantive appeal, the appellant indicated she only wished to continue the appeal for the issues listed on the first page of this decision. She also requested a video conference hearing, but she did not report for the hearing. Although notice of the hearing was sent in July 2018 correspondence, the letter was returned with a notation that she no longer lived at that address. The appellant has not provided VA with her current address. Whether new and material evidence has been received to reopen the claim for service connection for a low back disorder; service connection for hypertension, bilateral lower extremity peripheral neuropathy, and an acquired psychiatric disorder; entitlement to a higher rating for a heart disability; and entitlement to a TDIU. At the time of his death, the Veteran initiated an appeal of the February 2011 rating decision. After the Veteran died in May 2014 and the appellant applied for accrued benefits in June 2014, a statement of the case (SOC) was issued is in February 2015. These issues were service connection for bilateral lower extremity peripheral neuropathy, bilateral hip disorder, bilateral foot disorder, thyroid disorder, hypertension, and an acquired psychiatric disorder; higher ratings for cataracts, heart disability, right knee disability, and bilateral hearing loss, a TDIU; and new and material evidence claims for service connection for spinal meningitis and ankylosing spondylosis. Thereafter, in the March 2015 substantive appeal, she limited the appeal to the claims involving new and material evidence to reopen the claim for service connection for a low back disorder; an increased rating for a heart disability; service connection for hypertension, bilateral lower extremity peripheral neuropathy, and an acquired psychiatric disorder; and entitlement to a TDIU. The Board notes that in the February 2015 statement of the SOC the RO informed the appellant that her the filing of a VA Form 21-534 for accrued benefits is also accepted as a claim for substitution and that if she still wished to be substituted she must file a formal substantive appeal. Her Form 9 was received in March 2015, but the AOJ has not made substitution determination. Without a decision on substitution from the AOJ the Board does not have jurisdiction to adjudicate the claims, so the appeals must be dismissed. 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). These appeals on the merits have become moot by virtue of the Veteran’s death and must be dismissed for lack of jurisdiction. See 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. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Bredehorst