Citation Nr: 18150512 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-16 242 DATE: November 15, 2018 ORDER Entitlement to a service connection for a respiratory disorder, other than residuals of a spontaneous left pneumothorax, to include chronic obstructive pulmonary disease (COPD), and residuals of a right pneumothorax, is dismissed. Entitlement to an increased (compensable) rating for residuals of a spontaneous left pneumothorax is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. FINDING OF FACT In November 2018, the Board was notified that the Veteran died in October 2018. CONCLUSIONS 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) (West 2014); 38 C.F.R. § 20.1302 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from November 1966 to June 1969, including service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal of November 2012 and December 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The November 2012 RO decision denied service connection for a respiratory disorder, other than residuals of a spontaneous left pneumothorax (residuals of a spontaneous left pneumothorax, partial, idiopathic), to include COPD, and residuals of a right pneumothorax (listed as COPD and a right lung condition). The December 2012 RO decision denied an increased (compensable) rating for residuals of a spontaneous left pneumothorax (residuals of a spontaneous left pneumothorax, partial, idiopathic). In February 2017, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. In April 2017, the Board determined that the issue of entitlement to a TDIU was raised during the Veteran’s previously appealed increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also remanded the issues of entitlement to service connection for a respiratory disorder, other than residuals of a spontaneous left pneumothorax, to include COPD, and residuals of a right pneumothorax, and entitlement to an increased (compensable) rating for residuals of a spontaneous left pneumothorax, as well as the issue of entitlement to a TDIU, for further development. In March 2018, the RO denied a claim for entitlement to a TDIU. Although that rating action was not appealed, the Board finds that the TDIU rating is still part of the claim for an increased rating on appeal. See Rice, 22 Vet. App. at 447. 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. See 38 U.S.C. § 7104(a) (West 2014); 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 (West 2014); 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 (West 2014); 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 (listed on the first page of this decision). 38 C.F.R. § 3.1010(b) (2017). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. D. Regan, Counsel