Citation Nr: 21002025 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 19-22 499A DATE: January 12, 2021 ORDER The appeal seeking entitlement to a rating in excess of 60 percent for Thorazine-induced hepatitis is dismissed. The appeal seeking entitlement to an effective date earlier than April 12, 2017, for the award of a 60 percent rating for Thorazine-induced hepatitis is dismissed. FINDINGS OF FACT 1. The Veteran passed away in January 2019. 2. The Veteran’s surviving spouse was recognized as a valid substitute; however, in August 2020, VA received notification that she passed away in July 2020. 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 FINDINGS AND CONCLUSION The Veteran served on active duty from May 1955 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that granted a 60 percent rating for the Veteran’s service-connected Thorazine-induced hepatitis, effective April 12, 2017. In April 2018, the Veteran filed a notice of disagreement (NOD) with both the increased rating awarded and its effective date. While that NOD was pending, the Veteran passed away in January 2019. In July 2019, the Veteran’s surviving spouse was recognized as the lawful substitute for his claim. As a result, she was provided a Statement of the Case (SOC) in August 2019 that addressed the issue of entitlement to an increased evaluation for Thorazine-induced hepatitis and an earlier effective date. The surviving spouse perfected an appeal of that issue by filing a timely VA Form 9, substantive appeal, received in August 2019. In conjunction with the August 2019 VA Form 9, substantive appeal, the appellant’s private attorney submitted correspondence stating the SOC was “defective because it [did] not address the issue of an earlier effective date,” and requested correction of that deficiency. However, as noted above, the issue identified in the SOC was phrased to include an earlier effective date claim. Moreover, the reasons and bases provided in the SOC explained that the effective date of April 12, 2017, was assigned based on the date VA received the Veteran’s claim for an increased evaluation. Accordingly, the Board finds that corrective measure is not necessary in this regard. Entitlement to a rating in excess of 60 percent for Thorazine-induced hepatitis and entitlement to an effective date earlier than April 12, 2017, for the award of a 60 percent rating for Thorazine-induced hepatitis. Unfortunately, the appellant (the Veteran’s surviving spouse and lawful substitute for this claim) died in July 2020 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. 38 C.F.R. § 3.1010(b). The Board acknowledges that the appellant’s son has filed a timely Request for Substitution of Claimant Upon Death of Claimant. See August 2020 VA Form 21P-0847. Although the Agency of Original Jurisdiction (AOJ) found, initially, in December 2020, that he was an eligible substitute, that determination was subsequently retracted as a premature decision and the request for substitution remains pending further development. (Continued on the next page)   The Board cannot adjudicate requests for substitution in the first instance. Pursuant to 38 C.F.R. § 3.1010(e)(1), the AOJ must provide written notification of its decision to either grant or deny a request for substitution to the person who filed the request, together with notice in accordance with 38 C.F.R. § 3.103(b)(1), including any request to substitute in an appeal that is pending before the Board. 38 C.F.R. § 3.1010(e). As the AOJ has not yet made a substitution determination, the Board cannot adjudicate the appellant’s son’s request for substitution in the first instance. Consequently, the appellant’s appeal must be dismissed. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Richardson, 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.