Citation Nr: 18148264 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 12-17 832A DATE: November 8, 2018 ORDER The appeal to establish entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. FINDING OF FACT On September 10, 2018, prior to promulgation of a decision in this appeal, VA received first notice of death from the Veteran’s brother advising that the Veteran had died in September 2018. On September 18, 2018, VA received verification of the Veteran’s death in the form of a death certificate. 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 January 1957 to February 1959. This appeal to the Board of Veteran’s Appeals (Board) arises originally from a March 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that increased the rating for the Veteran’s tonsillitis/pharyngitis from 0 percent (noncompensable) to 10 percent effective November 16, 2010, the date of receipt of his claim for a higher rating for this service-connected disability. This case was previously before the Board in January 2017, when the Board denied the Veteran’s appeal for a higher rating. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court issued a Memorandum Decision that vacated the January 2017 Board decision to the extent that the Board “found that the issue of a total disability rating based on individual unemployability (TDIU) was not raised in connection with the claim for a higher rating.” The Court remanded the matter for readjudication consistent with the instructions outlined in the Memorandum Decision. The appeal has now returned to the Board for further appellate review. As noted by the Court in the May 2018 Memorandum Decision, the Veteran did not “challenge the denial of a higher rating for the throat conditions, and stated that “[a]ccordingly, his appeal as to this issue will be dismissed.” The Court dismissed the appeal of the January 2017 Board decision to the extent of the throat disability rating issue, and thus that issue is not before the Board in appellate status at this time. The Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) in August 2013. The Veteran died in September 2018. The case has been reassigned to the undersigned VLJ for the limited purpose of issuing the resultant formal dismissal of the appeal. 1. The appeal to establish entitlement to a TDIU is dismissed. Unfortunately, the Veteran died during the pendency of this 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). Therefore, 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 Veteran’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). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Barone, Counsel