Citation Nr: 21002767
Decision Date: 01/14/21	Archive Date: 01/14/21

DOCKET NO. 17-28 544
DATE: January 14, 2021

ORDER

The appeal for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed.

FINDING OF FACT

On December 4, 2020, the Board was notified that the Veteran died in November 2020.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board of Veterans’ Appeals (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 U.S. Marine Corps from March 1963 to March 1967.

This matter comes before the Board on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which increased the rating for the Veteran’s posttraumatic stress disorder (PTSD) to 50 percent, effective March 4, 2015.  In November 2015, the Veteran’s notice of disagreement with the assigned rating was received.  

In a March 2017 rating decision, the RO increased the rating for PTSD to 100 percent, effective February 15, 2017.  The RO issued a Statement of the Case in March 2017 addressing the issue of entitlement to a rating in excess of 50 percent for PTSD prior to February 15, 2017.  In March 2017, the Veteran perfected a timely appeal via his submission of a VA Form 9 in May 2017.  

In February 2019, the Board remanded the matter for additional evidentiary development.  In a September 2020 decision, the Board granted a 70 percent rating for PTSD prior to February 15, 2017.  The Board also took jurisdiction of the issue of entitlement to TDIU and remanded that matter for additional development.  Rice v. Shinseki, 22 Vet. App. 477 (2009) (holding that a claim for TDIU is part and parcel of an increased rating claim when raised by the record).  

Unfortunately, while the matter was in remand status, the Veteran died in November 2020.  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 Veteran 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 Veteran’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).

 

 

K. Conner

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. Hillan Sosa, 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.