Citation Nr: 1817486	
Decision Date: 03/23/18    Archive Date: 04/03/18

DOCKET NO.  14-31 590	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for the loss of left kidney.

2.  Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD).  

3.  Entitlement to a rating in excess of 20 percent for residuals of a spinal fusion.


REPRESENTATION

Appellant represented by:	Loreain Tolle, Agent


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

L. Baskerville, Counsel 


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from 1966 to December 1968.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  

In May 2016, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.  


FINDINGS OF FACT

1.  At the May 2016 Board hearing, the Veteran withdrew his claim for entitlement to a rating in excess of 20 percent for residuals of a spinal fusion.  

2.  In March 2018, the Board received confirmation that the Veteran died the same month.  

3.  At the time of his death, the Veteran had claims pending regarding the issues of entitlement to service connection for the loss of left kidney and entitlement to a rating in excess of 70 percent for posttraumatic stress disorder.  




CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal by the appellant have been met with respect to the issue of entitlement to a rating in excess of 20 percent for residuals of a spinal fusion.  38 U.S.C. §§ 7105 (b) and (d) (2012); 38 C.F.R. § 20.204 (2017).

2.  Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claims at this time with regard to appeal of the issues of entitlement to service connection for the loss of left kidney and entitlement to a rating in excess of 70percent for posttraumatic stress disorder.  38 U.S.C. § 7104(a) ( 2012); 38 C.F.R. §§ 20.1106, 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 CONCLUSIONS

At the May 2016 travel Board hearing, the Veteran stated that he wished to withdraw his claim for entitlement to a rating in excess of 20 percent for residuals of a spinal fusion.  Under 38 U.S.C.A. § 7105, the Board does not have jurisdiction over issues withdrawn by a Veteran.  Pursuant to 38 C.F.R. § 20.204, a Veteran can withdraw his appeal on the record at a hearing.  Thus, the Board has no jurisdiction to consider the withdrawn issues and it shall therefore be dismissed.

Regrettably, the Veteran died during the pendency of the appeal.  As a matter of law, Veterans' 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 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 (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. § 5121A (2012); 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 office from which the claim originated (listed on the first page of this decision).  38 C.F.R. § 3.1010(b) (2017).


ORDER

The claim for entitlement to for entitlement to a rating in excess of 20 percent for residuals of a spinal fusion is dismissed.  

The issue of entitlement to a rating in excess of 70 percent for posttraumatic stress disorder is dismissed.  

The issue of entitlement to service connection for the loss of left kidney is dismissed.  




____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs