Citation Nr: 21002896
Decision Date: 01/19/21	Archive Date: 01/19/21

DOCKET NO. 13-29 805
DATE: January 19, 2021

ORDER

The appeal for entitlement to service connection for an acquired psychiatric disorder is dismissed.

The appeal for entitlement to service connection for a heart disability, to include as secondary to an acquired psychiatric disorder and/or service-connected asbestosis, is dismissed.

The appeal for entitlement to a rating higher than 20 percent for bilateral keratitis is dismissed.

The appeal for entitlement to an initial rating higher than 10 percent, prior to August 27, 2013, higher than 30 percent, from August 27, 2013 to May 24, 2016, and higher than 60 percent, from May 24, 2016 to October 24, 2019, for asbestosis is dismissed.

The appeal for entitlement to a total disability rating based on individual unemployability (TDIU), prior to May 24, 2016, is dismissed.

FINDING OF FACT

In December 2020, the Board was notified that the Veteran died in December 2020.

CONCLUSION OF LAW

Due to the death of the Veteran, 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 July 1960 to March 1964.  

This matter comes before the Board of Veterans’ Appeals (BVA or Board) from December 2009, April 2012, and September 2013 rating decisions.

The Veteran requested a hearing before the Board.  The requested hearing was conducted in February 2017.  A transcript is associated with the claims file.

In August 2018, the Board remanded these claims for additional development.  

In an April 2020 rating decision, the RO granted an increased evaluation of 60 percent for asbestosis, effective May 2016, and an evaluation of 100 percent, effective October 2019.

In a September 2020 rating decision, the RO granted entitlement to a TDIU, effective May 2016.

All issues are dismissed.

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, veterans’ 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 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).

 

 

TANYA SMITH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	L. Andersen, 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.