Citation Nr: 1807018	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  05-04 513	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to an increased rating for lumbar laminectomy for herniated disc L4-L5, evaluated as 10 percent disabling prior to October 22, 2014, and as 40 percent disabling thereafter. 

2.  Entitlement to an initial rating in excess of 30 percent for depression prior to May 2, 2017, and 50 percent therafter.

3.  Entitlement to service connection for a bilateral hip disorder as secondary to the service connected disability of lumbar laminectomy for herniated disc L4-L5. 

4.  Entitlement to service connection for a bilateral foot disorder as secondary to the service connected disability of lumbar laminectomy for herniated disc L4-L5. 

5.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to October 22, 2014. 



REPRESENTATION

Appellant represented by:	Robert P. Walsh, Attorney


WITNESS AT HEARING ON APPEAL

Appellant 


ATTORNEY FOR THE BOARD

A. D. Jackson, Counsel


INTRODUCTION

The Veteran served on active duty from September 1969 to August 1971. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2004 and September 2005 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  In the May 2004 rating decision, the RO denied an increased rating for lumbar laminectomy for herniated disc L4-L5; and service connection for bilateral foot and hip disorders, secondary to the service-connected lumbar laminectomy for herniated disc L4-L5. In the September 2005 rating decision, the RO denied a TDIU and eligibility to DEA. 

In December 2005, the Veteran testified before a now retired Veterans Law Judge sitting at the RO (Travel Board hearing).  A transcript of that hearing is of record. 

In November 2006 the Board denied the Veteran's claim for an increased rating for the service-connected lumbar spine disability, as well as the claims for service connection for bilateral foot and hip disorders.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court).  In June 2008 the Court granted Joint Motion for Remand. 

The case was remanded in November 2008, May 2011 and July 2016. 


FINDINGS OF FACT

On September 25, 2017 the Board was notified by the Department of Veterans Affairs (VA) Regional Office that the Appellant died in August 2017.


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.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the appellant 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).  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 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.A. § 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 (listed on the first page of this decision).  38 C.F.R. § 3.1010(b). 


ORDER

The appeal is dismissed.





____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs