Citation Nr: 1808547	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  08-12 808	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to an increased initial evaluation for calcified pleural plaques consistent with asbestos exposure, rated as noncompensable prior to March 21, 2010, and as 10 percent disabling from March 21, 2010 to December 3, 2014.  



REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

The Veteran and his wife




ATTORNEY FOR THE BOARD

Steve Ginski, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1948 to April 1952.  This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

In April 2011, the Veteran and his wife presented testimony at a hearing held at the RO before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the record.

In September 2011, September 2012, August 2013, February 2014, August 2014, and January 2017, the Board remanded the case for additional development.

In an August 2017 rating decision, a total disability rating was awarded for service-connected calcified pleural plaques consistent with asbestos exposure, effective December 3, 2014.  As this is the maximum available benefit, the appeal terminates as of December 3, 2014.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).  The appeal for an increased rating prior to December 3, 2014, still survives because the maximum disability rating possible had not been awarded.  AB v. Brown, 6 Vet. App. 35 (1993).  In light of the most recent development, the issue has been recharacterized.  

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system.  LCM contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2014).


FINDING OF FACT

In December 2017, VA received the Veteran's death certificate, which indicates that he died in December 2017.  


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appealed claim at this time. 38 U.S.C. § 7104 (a) (2014); 38 C.F.R. 
§ 20.1302 (2016); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Unfortunately, the Veteran in this case died during the pendency of the appeal.  As a matter of law, an appellant's claim does not survive his 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). 

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.  See 38 U.S.C. § 5121A (2014); 38 C.F.R. § 3.1010(b) (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 (listed on the first page of this decision). 38 C.F.R. § 3.1010(b).


ORDER

The appeal is dismissed.




____________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs