Citation Nr: 20004824
Decision Date: 01/21/20	Archive Date: 01/21/20

DOCKET NO. 18-20 602
DATE: January 21, 2020

ORDER

Entitlement to a total disability based on individual unemployability is dismissed.

Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is dismissed.

FINDING OF FACT

In December 2019 the Board was notified that the appellant died in November 2019.

CONCLUSIONS OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this 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 in the United States Marine Corps from January 1966 to October 1967.    

1. Entitlement to a total disability based on individual unemployability

2. Entitlement to a rating in excess of 50 percent for PTSD

The Veteran perfected his appeal for a claim for entitlement to a total disability rating based on unemployability in April 2018. His appeal for a rating in excess of 50 percent for PTSD was perfected in February 2019. He died in November 2019 while his appeals were pending review.  

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. § 7104(a); 38 C.F.R. § 20.1302.

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.  

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).                                                                                                                                                                                                                                                                                       

 

 

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	E. Rekowski

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.