Citation Nr: 1807078	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  11-24 340	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1.  Entitlement to service connection for a prostate disability.  

2.  Entitlement to an increased rating for posttraumatic stress disorder (PTSD), in excess of 70 percent prior to July 21, 2014.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and C.C.



ATTORNEY FOR THE BOARD

H. Ahmad, Associate Counsel


INTRODUCTION


The Veteran served on active duty from June 1967 to May 1970, including service in the Republic of Vietnam from February 1968 to February 1969.

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  The Veteran testified before the undersigned at a February 2013 hearing.  A transcript of that hearing is of record.


FINDING OF FACT

1.  In January 2017, the Veteran withdrew the appeal for increased rating for PTSD.

2.  On October 30, 2017, the Board was notified by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines that the appellant died in October 2017.


CONCLUSION OF LAW

1.  The appeal for increased rating for PTSD is withdrawn.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).

2.  Due to the death of the appellant, the Board has no jurisdiction to adjudicate the appeal for service connection for a prostate disability at this time.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Withdrawal

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2014).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204 (2017).  In the present case, the appellant requested that the appeal for increased rating for PTSD be withdraw in January 2017.  The Board finds that the Veteran has withdrawn the appeal and there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.

Dismissal

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 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330 (1997); Landicho v. Brown, 7 Vet. App. 42 (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.  38 U.S.C. § 7104(a) (2012); 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.  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 38 U.S.C. § 5121(a).  38 U.S.C. § 5121A (2012); 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.  38 C.F.R. § 3.1010(b) (2017). 


ORDER

Because the appeal was withdrawn, the appeal for increased rating for PTSD is dismissed.

Because of the death of the Veteran, the appeal for service connection for a prostate disability is dismissed.



		
Harvey P. Roberts
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs