Citation Nr: 1808771	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  12-10 348	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for a pilonidal cyst disability for the period prior to September 20, 2007.

2.  Entitlement to an initial rating in excess of 20 percent for a pilonidal cyst disability for the period from September 20, 2007 to July 20, 2010.

3.  Entitlement to an initial rating in excess of 20 percent for a pilonidal cyst disability for the period from October 1, 2010.

4.  Entitlement to service connection for right lower extremity peripheral neuropathy.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran served on active duty from February 1957 to January 1959.

This matter is before the Board of Veterans' Appeals (the Board) on appeal of September 2009 and March 2011 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In the March 2011 rating decision, the RO, in part, granted an initial rating of 20 percent, effective September 20, 2007, granted a temporary 100 percent evaluation based on surgical or other treatment necessitating convalescence, effective July 21, 2010 and granted an initial 20 percent disability, effective October 1, 2010 for the Veteran's pilonidal cyst disability.  

The Board notes that since the increases from 10 to 20 percent for a pilonidal cyst disability did not constitute a full grant of the benefits sought, the issues of entitlement to an initial rating in excess of 20 percent for the period from September 20, 2007 to July 20, 2010 and for the period since October 1, 2010 remain in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).


FINDINGS OF FACT

1.  The Veteran in this case served on active duty from February 1957 to January 1959. 

2.  The record reflects that the Veteran died in December 2017.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of these claims at this time.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017); 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 record reflects that the Veteran died in December 2017 while his appeal was undergoing development.  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 Veteran and must be dismissed for lack of jurisdiction.  See 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 these appeals 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.A. § 5121A; see 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 regional office (RO) from which the claim originated (listed on the first page of this decision).  38 C.F.R. § 3.1010(b).  



	(CONTINUED ON NEXT PAGE)
ORDER

The appeal is dismissed.




____________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs