Citation Nr: 20008078 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 14-38 575 DATE: January 30, 2020 ORDER The appeal is dismissed. FINDING OF FACT In November 2019 the Board was notified that the appellant died in November 2019. CONCLUSION 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 had active service from October 1975 to August 1976. These matters come before the Board of Veterans’ Appeal (Board) from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Historically, a September 1977 rating decision addressed a claim for service connection for a psychiatric disorder. It was noted that an inservice medical history of August 9, 1976, noted “nerves due to family situations” but there was no inservice treatment or diagnosis of a psychiatric disorder. It was further noted that after service the Veteran had undergone VA hospitalization in September 1976 and the diagnosis had been schizophrenia. The assessment had been that she presented with features of schizophrenia of latent-type. She again underwent VA hospitalization in June 1977, complaining of nervousness, tenseness, and confusion. There was evidence of a thought disorder, mainly blocking and loose associations. That rating decision granted service connection for chronic undifferentiated schizophrenia. A December 1977 rating decision proposed to sever service connection for schizophrenia, stating that the September 1977 rating decision had granted service connection on a presumptive basis (having manifested within one year after service). It was found that the Veteran’s schizophrenia clearly preexisted her active service and was not aggravated during service, even though it manifested to a compensable degree within the first postservice year. Thus, it was proposed that service connection for schizophrenia be severed. An April 1978 rating decision again proposed to severed service connection for schizophrenia. It was noted that following the December 1977 proposal to sever service connection for schizophrenia there had been additional development which included obtaining preservice private medical records which documented extensive evaluation and treatment of the Veteran for psychiatric disability, with signs and symptoms which included hearing voices, delusions, and ideas of reference. These preservice records also contained diagnoses of a schizophrenic disorder. It was found that her psychiatric disability manifested prior to her active service, rebutting the presumption of soundness, and was not aggravated during active service. A July 1978 rating decision severed service connection for schizophrenia. A February 1979 Board decision found that the original grant of service connection for schizophrenia was clearly and unmistakably erroneous and that the Veteran’s psychiatric disability clearly preexisted active service and her inservice complaints of fatigue in January and August 1976 were not manifestations of a psychiatric disorder. As such, the severance of service connection for schizophrenia was proper. The Veteran was notified by RO letter in February 2000 of a rating decision that month which denied service connection for an acquired psychiatric disorder, including schizophrenia and PTSD due to sexual assault. The actual rating decision stated that a May 31, 1984, Board decision had denied service connection for an acquired psychiatric disorder. However, this was incorrect inasmuch as that Board decision addressed only the issue of entitlement to a compensable rating for residuals of bilateral stress fractures of the os calcis. In event, the RO determined that new and material evidence had been received to reopen the claim for service connection for an acquired psychiatric disorder, including schizophrenia and PTSD due to sexual assault but denied the claim on the merits, including consideration of the provisions of 38 C.F.R. § 3.304(f) (relative to PTSD from an assault). The Veteran filed a Notice of Disagreement (NOD) on April 27, 2000, as to the February 2000 rating decision, and a Statement of the Case (SOC) was issued on March 21, 2001. However, the appeal was not perfected by the filing of a Substantive Appeal, VA Form 9 or equivalent. In May 2001 a motion to revise the February 1979 Board decision was received. An October 2001 Board decision found that the February 1979 Board decision did not contain clear and unmistakable error (CUE). At her death, the Veteran was service-connected for residuals of a stress fracture of the os calcis with degenerative arthritis of the right ankle, rated 10 percent disabling; residuals of a stress fracture of the os calcis with degenerative arthritis of the left ankle, rated 10 percent disabling; and anemia, assigned a noncompensable rating. There was a combined disability evaluation of 20 percent. 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. 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. 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; 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). 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.