Citation Nr: 1815291 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 10-09 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a rating in excess of 30 percent from May 8, 2008, to February 17, 2009, in excess of 40 percent from February 17, 2009, to May 9, 2017, and in excess of 80 percent thereafter for bilateral hearing loss. 2. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder. 3. Entitlement to an initial rating in excess of 10 percent for shell fragment wound residual, anterolateral aspect/proximal part of the right leg with retained foreign body. 4. Entitlement to service connection for throat cancer, to include as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney at Law ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1966 to April 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction of the Veteran's claims file was subsequently transferred to the RO in Indianapolis, Indiana. In regard to the Veteran's claim for a higher rating for bilateral hearing loss, the October 2008 rating decision awarded a 30 percent rating, effective May 8, 2008. Thereafter, he perfected an appeal as to the propriety of the assigned rating. During the course of the appeal, a February 2010 rating decision, issued in connection with a statement of the case, awarded a 40 percent rating for such disability, effective February 17, 2009; and a December 2017 rating decision, issued in connection with a supplemental statement of the case, awarded an 80 percent rating for such disability, effective May 9, 2017. The Veteran was advised of the partial grants of the increased rating, but he did not indicate that such satisfied his appeal and he did not withdraw such issue from appellate consideration. Therefore, such issue remains in appellate status and has been included on the title page of this decision, to include the recharacterization of such to show the staged ratings. See AB v. Brown, 6 Vet. App. 35 (1993); Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, while the Veteran separately perfected an appeal as to the issue of entitlement to service connection for erectile dysfunction, such matter had not yet been certified to the Board at the time of his death and, as such, was closed at the RO. FINDING OF FACT In February 2018, the Board was notified that the Veteran died earlier in the month, as confirmed by his death certificate. CONCLUSION OF LAW Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this 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 Unfortunately, the Veteran 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 Veteran and must be dismissed for lack of jurisdiction. See 38 U.S.C.A. § 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. In this regard, 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 Veteran's death. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b). 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; see 38 C.F.R. § 3.1010(a). 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. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs