Citation Nr: 18154922
Decision Date: 12/04/18	Archive Date: 11/30/18

DOCKET NO. 16-62 441
DATE:	December 4, 2018
ORDER
Entitlement to a rating greater than 70 percent for posttraumatic stress disorder (PTSD) is denied.
Entitlement to a total disability based upon individual unemployability (TDIU) is denied.  
FINDING OF FACT
VA may not substitute the Appellant in the Veteran's appeal.  
CONCLUSION OF LAW
The criteria for substitution of the Appellant in the Veteran's appeal are not met.  38 U.S.C. §§ 5121, 5121A.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from October 1986 to October 1990.  The Veteran died in June 2017.  The Appellant is the Veteran's brother.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs.
The October 2016 Statement of the Case (SOC) listed two issues.  The Veteran attempted to limit the scope of his appeal to the TDIU issue above, but the text of his December 2016 VA Form 9 suggests he wanted to appeal both issues in the SOC.  Therefore, the undersigned has included both issues on the title page.
Issue 1: Entitlement to a rating greater than 70 percent for posttraumatic stress disorder (PTSD).
Issue 2: Entitlement to a total disability based upon individual unemployability (TDIU).  
Section 5121 of Title 38 of the United States Code concerns the "payment of certain accrued benefits upon death of [a] beneficiary."  It enumerates and prioritizes a list of eligible claimants based upon marriage and consanguinity.  The United States Congress did not include the siblings of veterans except to allow that "so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial."  Here, VA granted the Appellant the burial benefits he sought in September 2017.  
(Continued on the next page)
 
VA is statutorily prohibited from substituting the Appellant for the issues above.  Under these circumstances, the Board must deny the claim as a matter of law, and the Veterans Claim Assistance Act of 2000 does not apply.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
 
KELLI A. KORDICH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Sopko, Counsel