Citation Nr: 19110489
Decision Date: 02/08/19	Archive Date: 02/08/19

DOCKET NO. 13-10 821
DATE:	February 8, 2019

ORDER

The appeal of the 70 percent rating assigned for posttraumatic stress disorder (PTSD) is dismissed.

FINDING OF FACT

In December 2018, the Veteran’s surviving spouse notified VA that the Veteran died in November 2018.

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 (2018).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran was awarded service connection for PTSD by way of an April 2011 rating decision and appealed the initial 50 percent rating assigned.  In August 2015, the RO issued another rating decision increasing the rating to 70 percent prior to November 10, 2014, and 100 percent thereafter.  The matter of whether a rating in excess of 70 percent prior to November 10, 2014, remains on appeal.  A.B. v. Brown, 6 Vet. App. 35 (1993).  

Unfortunately, in December 2018, the Veteran’s surviving spouse notified VA that he had died in November 2018.  As a matter of law, the Veteran’s claim does not survive his death.  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).  The matter on appeal, therefore, 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 (2018).  

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 (2018).  

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) (2018).  

 

MICHAEL E. KILCOYNE

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	A. Adamson, Counsel