Citation Nr: 1819418	
Decision Date: 04/03/18    Archive Date: 04/12/18

DOCKET NO.  14-00 172	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, type II.

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a respiratory disability, to include emphysema/chronic obstructive pulmonary disease (COPD).

3 Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension and cardiac stress.

4.  Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD).

5.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU).



REPRESENTATION

Appellant represented by:	Adam Neidenberg, Attorney


ATTORNEY FOR THE BOARD

Anthony Flamini, Counsel 


INTRODUCTION

The Veteran served on active duty from May 1966 to April 1969.     

These issues come before the Board of Veterans Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, and an October 2013 rating decision by the RO in Montgomery, Alabama.  The claims file was subsequently transferred to the RO in Los Angeles, California.  


FINDING OF FACT

In December 2017, the Board was notified by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida, that the appellant died on December [REDACTED], 2017.


CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the issues that are the subject of this appeal at this time.  38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

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, 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 appellant and must be dismissed for lack of jurisdiction.  See 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2017).

In reaching this determination, the Board intimates no opinion as to the merits of the issues that are the subject 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 the claims that are the subject 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.A. § 5121A (West 2014); 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.A. § 5121A (West 2014); 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). 





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ORDER

The appeal as to whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, type II, is dismissed.

The appeal as to whether new and material evidence has been received to reopen a claim of entitlement to service connection for a respiratory disability, to include emphysema/chronic obstructive pulmonary disease (COPD), is dismissed.

The appeal as to whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension and cardiac stress is dismissed.

The appeal as to entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is dismissed.

The appeal as to entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is dismissed.




		
U. R. POWELL
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs