Citation Nr: 21003677 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 15-05 894 DATE: January 22, 2021 ORDER Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity (femoral nerve) is dismissed. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity (sciatic nerve) is dismissed. Entitlement to a rating in excess of 10 percent for left knee ligamentous strain and periodic pain and swelling is dismissed. Entitlement to a rating in excess of 10 percent for left knee lateral instability associated with left knee ligamentous strain is dismissed. Entitlement to a rating in excess of 10 percent for left knee ligamentous strain with limitation of extension is dismissed. FINDING OF FACT On January 12, 2021 the Board was notified that the appellant died in January 2021. 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 served on active duty from May 1971 to May 1991. This matter came before the Board of Veterans Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A November 2018 Board decision denied the issues on appeal. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand (JMPR) in February 2020, asking that the November 2018 Board decision be vacated only as it pertained to reopening of the claim for entitlement to service connection for a right knee disability and increased ratings for left lower extremity radiculopathy of the sciatic and femoral nerves, the left knee disability and a bilateral foot disability. In February 2020, the Court granted the JMPR and remanded the issues on appeal for readjudication in accordance with instructions set out in the JMPR. A September 2020 Board decision denied entitlement to an increased rating for the bilateral feet, denied reopening of the claim for service connection for a right knee disability, and remanded the issues of increased ratings for the left lower extremity femoral and sciatic nerve disabilities and the left knee disability for further development. An October 2020 rating decision granted service connection for left knee lateral instability (assigning a 10 percent rating) and left knee ligamentous strain (assigning a noncompensable rating). Because higher ratings for the left knee disability are assignable during the period and the Veteran is presumed to seek the maximum available benefit, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 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. 38 C.F.R. § 3.1010(b). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold, 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.