Citation Nr: 18100726
Decision Date: 04/19/18	Archive Date: 04/19/18

DOCKET NO. 14-37 645
DATE:	April 19, 2018
ISSUES DECIDED:	1	ISSUES REMANDED:	0
 
ORDER
The appeal for entitlement to an increased rating for service-connected posttraumatic stress disorder (PTSD), to include an evaluation in excess of 50 percent prior to September 23, 2014, and in excess of 70 percent thereafter, excluding periods of temporary total ratings, is dismissed.  
FINDING OF FACT
In November 2016, the Board was notified that the Veteran had passed away on November 14, 2016.  
CONCLUSION OF LAW
Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of his appeal at this time.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017).  
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had honorable active duty service with the United States Marine Corps from December 1964 to December 1968.  The Veteran received the Vietnam Service Medal and the Vietnam Campaign Medal, among other commendations.  The Veteran passed away in November 2016.  
This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, continuing the 50 percent disability rating for the Veteran’s service-connected PTSD.  
During the pendency of the appeal and prior to the Veteran’s death, in a June 2015 rating decision, the RO increased the evaluation of the Veteran’s PTSD to 70 percent, effective as of October 1, 2014.  Subsequently, in a July 2015 rating decision, the RO granted an earlier effective date for the 70 percent disability rating, assigning an effective date of September 23, 2014.  When a Veteran seeks an increased rating, it is generally presumed that the maximum benefit allowed is sought, and a claim remains in controversy where less than the maximum benefit is awarded.  AB v. Brown, 6 Vet. App. 35 (1993).  
 
Dismissal Due to the Veteran’s Death
Unfortunately, the Veteran passed 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).  
 
 
B. MULLINS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Y. MacDonald, Associate Counsel