Citation Nr: 1806799 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-05 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether the Veteran submitted a timely substantive appeal (VA Form 9 or equivalent) in response to the July 2009 Statement of the Case (SOC) that addressed the denial of his claim for an increased rating for the service-connected tuberculosis. 2. Entitlement to an increased evaluation for the service-connected tuberculosis prior to January 14, 2010. (The issue of whether the Veteran's adult daughter is a valid substitute for the Veteran's increased rating claim is the subject of a separate decision of the Board.) REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran had active service in the United States Navy from July 1943 to December 1945. The Veteran died in December 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from actions taken by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case must take into account the existence of this electronic record. FINDINGS OF FACT 1. In a September 2010 rating action, a Decision Review Officer (DRO) stated that the VA Form 9 submitted by the Veteran in October 2009 was timely, that VACOLS was to be updated accordingly and that the Veteran was to be informed that his increased rating claim would be considered; notice of this action was sent to the Veteran that same month. 2. The Veteran's increased rating claim was still pending at the time of his December 2011 death. 3. At this time, due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal as to whether an increased rating for the service-connected tuberculosis was warranted prior to January 14, 2010. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2017); but see 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010 (2017). CONCLUSIONS OF LAW 1. The appeal for as to the question of whether the Veteran submitted a timely substantive appeal in response to the July 2009 Statement of the Case on the issue of entitlement to an increased evaluation for the service-connected tuberculosis is moot by virtue of the September 2010 rating action that declared the substantive appeal to be timely and, as such, there remains no matter in controversy for which the Board has jurisdiction. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009); 38 U.S.C.A. § 7104(a) (West 2014). 2. Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the increased rating appeal at this time. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2017); but see 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Timeliness of Substantive Appeal An appeal to the Board consists of a timely filed notice of disagreement (NOD) in writing and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal (e.g., a VA Form 9 or equivalent). 38 C.F.R. § 20.200. A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. See 38 C.F.R. § 20.202. As a general rule, a substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the appellant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later, to perfect an appeal of any issue adjudicated by the RO. See 38 U.S.C.A. § 7105(a), (b)(1); 38 C.F.R. § 20.302. If an appeal is not perfected within the time specified by the regulation, the RO's determination becomes final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d). However, in Percy v. Shinseki, 23 Vet. App. 37 (2009), the United States Court of Appeals for Veterans Claims (Court) found 38 U.S.C.A. § 7105 was not intended to foreclose the Board's exercise of jurisdiction over a matter in which a substantive appeal was untimely. Consequently, because the 60-day filing period is not jurisdictional, VA may waive any issue of timeliness in the filing of the substantive appeal, either explicitly or implicitly, and is not required to close an appeal for failure to file a timely substantive appeal. The Court in Percy also went on to determine that any issue concerning the timely filing of the substantive appeal in that particular case was waived by VA, due to the fact that VA seemed to have treated the Veteran's appeal as if it were timely perfected for several years. Review of the evidence of record in this case reveals that the RO did indeed take action that explicitly indicated to the Veteran that his increased rating claim remained on appeal. Specifically, a Decision Review Officer (DRO), in a September 2010 rating action, stated that the VA Form 9 submitted by the Veteran in October 2009 was timely. The DRO further stated that the claim/appeal was to be updated in VACOLS accordingly and that the Veteran was to be informed that his increased rating claim would be considered. Notice of this action was sent to the Veteran that same month. Therefore, the requirement that there be a substantive appeal was waived. As the Veteran's substantive appeal was determined to be timely by the RO, the matter of a timely substantive appeal is moot and the issue must be dismissed. II. Increased Rating Claim As a result of the actions taken by the RO in September 2010, the Veteran's increased rating claim remained in appellate status. Thereafter, no readjudication of the claim was accomplished and the increased rating claim was still pending at the time of the Veteran's death in December 2011. Thus, unfortunately, the Veteran died during the pendency of the 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). The increased rating claim on appeal on the merits has become moot by virtue of the death of the Veteran and therefore must be dismissed for lack of jurisdiction. See 38 U.S.C.A. § 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 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 (2012); 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.A. § 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 (listed on the first page of this decision). 38 C.F.R. § 3.1010(b). The Board notes that the Veteran's adult daughter did file such a request for substitution in February 2012. That request is addressed in a separate Board decision. (CONTINUED ON NEXT PAGE) ORDER The appeal as to the timeliness of the substantive appeal (VA Form 9) submitted in October 2009 is dismissed as moot. The appeal as to the issue of entitlement to an increased evaluation for the service-connected tuberculosis prior to January 14, 2010, is dismissed. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs