Citation Nr: 18159836
Decision Date: 12/20/18	Archive Date: 12/20/18

DOCKET NO. 16-51 471
DATE:	December 20, 2018
ORDER TO VACATE
The August 28, 2017 Board decision addressing the issues of entitlement to initial disability ratings for accrued benefits purposes in excess of 30 percent for residuals of a cold weather injury of the right foot; 30 percent for residuals of cold weather injury of the left foot; 20 percent prior to October 25, 2010 for residuals of cold weather injury of the right hand; 30 percent from October 25, 2010 for residuals of cold weather injury of the left hand; 30 percent from October 25, 2010for residuals of the cold weather injury of the right hand; 10 percent for residuals of cold injury, peripheral neuropathy of the right lower extremity; 10 percent for residuals of cold injury, and peripheral neuropathy of the left lower extremity is VACATED.
The August 28, 2017 Board decision addressing entitlement to accrued benefits, to include special monthly compensation; entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) for accrued benefits purposes; and entitlement to a separate rating for Raynaud’s phenomenon for accrued benefits purposes is VACATED.

ORDER TO DISMISS
Entitlement to an initial disability rating in excess of 30 percent for residuals of a cold weather injury of the right foot for accrued benefits purposes is DISMISSED.
Entitlement to an initial disability rating in excess of 30 percent for residuals of a cold weather injury of the left foot for accrued benefits purposes is DISMISSED
Entitlement to an initial disability rating in excess of 20 percent prior to October 25, 2010, and 30 percent from October 25, 2010, for residuals of cold weather injury of the right hand for accrued benefits purposes is DISMISSED.
Entitlement to an initial disability rating in excess of 20 percent prior to October 25, 2010, and 30 percent from October 25, 2010, for residuals of cold weather injury of the left hand for accrued benefits purposes is DISMISSED.
Entitlement to an initial disability rating in excess of 10 percent for residuals of cold injury, peripheral neuropathy of the right lower extremity for accrued benefits is DISMISSED.
Entitlement to an initial disability rating in excess of 10 percent for residuals of cold injury, peripheral neuropathy of the left lower extremity for accrued benefits is DISMISSED.
Entitlement to accrued benefits, to include special monthly compensation for accrued benefits purposes is DISMISSED.
Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) for accrued benefits purposes is DISMISSED.
Entitlement to a separate rating for Raynaud’s phenomenon for accrued benefits purposes is DISMISSED.

FINDING OF FACT
The record reflects that the Appellant passed away in December 2015.  
CONCLUSION OF LAW
Due to the death of the Appellant, 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 honorably in the United States Army from December 1950 to November 1962.  The Veteran passed away in December 2012.  Following his death, the Veteran’s surviving spouse was substituted as the Appellant.  The record reflects that the Appellant later passed away in died in December 2015.
I.  VACATUR
The Board of Veterans’ Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104 (a) (West 2014); 38 C.F.R. § 20.904 (2017). 
The Appellant died in December 2015, prior to the issuance of the Board’s August 28, 2017 decision in this case (rendering the matters moot).  Accordingly, the August 2017 decision addressing the issues of entitlement to higher ratings for cold weather injuries of the feet and hands and peripheral neuropathy of the lower extremities; entitlement to special month compensation; entitlement to TDIU; and entitlement to a separate rating for Raynaud’s phenomenon is vacated. 
II.  DISMISSAL
As a matter of law, an appellant’s claims do not survive his or her death.  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 Appellant 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 Appellant.  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 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; 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).
 
DAVID L. WIGHT
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	RLBJ, Associate Counsel