Citation Nr: 19168024
Decision Date: 09/03/19	Archive Date: 09/03/19

DOCKET NO. 18-15 160
DATE: September 3, 2019

ORDER

Entitlement to an initial compensable rating for residuals, breathing difficulty, post operative septorhinoplasty prior to June 29, 2013, and in excess of 10 percent thereafter, is dismissed.

FINDING OF FACT

On March 26, 2019, VA received notification that the Veteran had died in March 2019.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal at this time.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1971 to January 1973.

This matter comes to the Board of Veterans’ Appeals (Board) from a March 2013 rating decision of Department of Veterans Affairs (VA) Regional Offices (RO) which granted service connection for residuals, breathing difficulty, post operative septorhinoplasty, and assigned an initial noncompensable rating effective March 14, 2012.  

The Veteran submitted a Notice of Disagreement (NOD) in February 2014.  In an October 2015 rating decision, the RO increased the rating for the Veteran’s residuals, breathing difficulty, post operative septorhinoplasty to 10 percent, effective June 29, 2013.  Although a rating was granted, the issue remained in appellate status as described above as the RO did not assign the maximum schedular rating from the award of service connection.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a rating decision issued subsequent to a notice of disagreement that grants less than the maximum available rating does not abrogate the pending appeal).  A Statement of the Case (SOC) was issued in January 2018 and the Veteran perfected an appeal via his submission of a VA Form 9 in March 2018.  

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, an appellant’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).  This appeal on the merits has become moot by virtue of the death of the Veteran and must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

 

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; 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.  38 C.F.R. § 3.1010(b). 

 

 

K. Conner

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	H. Yun, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.