Citation Nr: 20006530 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 16-42 504 DATE: January 27, 2020 ORDER The appeal of entitlement to a rating in excess of 60 percent for coronary artery disease (CAD) is dismissed. The appeal of entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, is dismissed. The appeal of entitlement to a compensable rating for erectile dysfunction is dismissed. The appeal of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is dismissed. FINDINGS OF FACT In October 2019, the Board was notified by the Department of Veterans Affairs Regional Office, that the appellant died on October 14, 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) (2012); 38 C.F.R. § 20.1302 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1970 to October 1971. The Veteran was notified by a Department of Veterans Affairs (VA) Regional Office (RO) letter of December 10, 2015, of a rating decision of December 9, 2015, which denied service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. However, the Veteran never filed a Notice of Disagreement (NOD) which would have initiated an appeal of that decision. This appeal was processed using the Veterans Benefits Management System (VBMS) and, in addition there is a Legacy (formerly Virtual VA) paperless claims electronic file. 1. The appeal of entitlement to a rating in excess of 60 percent for CAD 2. The appeal of entitlement to a rating in excess of 20 percent for diabetes mellitus, type II 3. The appeal of entitlement to a compensable disability rating for erectile dysfunction 4. The appeal of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) The Veteran perfected an appeal from a February 2015 rating decision which: (a) denied a rating in excess of 60 percent for CAD; (b) denied a rating in excess of 20 percent for diabetes mellitus, type II; (c) denied a compensable disability rating for erectile dysfunction; and (d) denied a TDIU rating. He initiated an appeal of all of those determinations by filing a Notice of Disagreement (NOD) in VA Form 21-0958, in September 2015, and after an August 2016 Statement of the Case (SOC), he perfected the appeal by filing VA Form 9 in September 2016, in which he requested a Board videoconference. 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. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2019). 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 (2019). 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) (2019). 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) (2019). 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) (2019). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.