Citation Nr: 18148242
Decision Date: 11/07/18	Archive Date: 11/07/18

DOCKET NO. 09-37 366A
DATE:	November 7, 2018
ORDER
Entitlement to a disability rating in excess of 60 percent for cardiomyopathy with non-obstructive coronary artery disease claimed as atrial fibrillation, mitral valve prolapse, and history of congestive heart failure with placement of a biventricular pacing implantable defibrillator from June 28, 2017, is dismissed.
FINDING OF FACT
In August 2018 the Board was notified that the Veteran died on August [redacted], 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); 38 C.F.R. § 20.1302.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from December 1965 to October 1967.  In December 2015 the Board issued a decision denying service connection for heart disease to include cardiomyopathy; atrial fibrillation; mitral valve prolapse; congestive heart failure and placement of a biventricular pacing implantable defibrillator; and the issue of entitlement to an initial rating in excess of 10 percent for non-obstructive coronary artery disease.  The Veteran appealed the Board’s decision to the United States Court of Appeals for Veteran Claims (Court) and in an October 2016 decision, the Court remanded this appeal to the Board for action consistent with an October 2016 Joint Motion for Remand (JMR).  The Board subsequently remanded this case in April 2017 to the Agency of Original Jurisdiction (AOJ) for additional development in compliance with the Court’s order.  In a February 2018 rating decision, service connection for cardiomyopathy was granted and the Veteran’s already service-connected non-obstructive coronary artery disease was recharacterized as cardiomyopathy with non-obstructive coronary artery disease claimed as atrial fibrillation, mitral valve prolapse, and history of congestive heart failure with placement of a biventricular pacing implantable defibrillator; a 100 percent disability evaluation was assigned effective from February 7, 2007, with an evaluation of 60 percent effective from June 28, 2017.  Thus, the service connection issue is no longer before the Board as it has been resolved on remand.  However, the evaluation for the Veteran’s service-connected heart disease which was also on appeal remains in appellate status for the period from June 28, 2017, as a 100 percent rating was not assigned from that date.  Thus, the issue has been recharacterized as above in the Order of this decision to reflect the procedural history outlined herein.  
Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, Veteran’s 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.  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. 
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 Veteran 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; 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; see 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 should file a request for substitution with the VA office from which the claim originated.  38 C.F.R. § 3.1010 (b).
 
S. L. Kennedy
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Costello, Associate Counsel