Citation Nr: 21003754 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-03 599 DATE: January 22, 2021 ORDER Entitlement to an initial rating in excess of 20 percent, prior to January 28, 2020, and in excess of 60 percent thereafter, for type II diabetes mellitus is dismissed. Entitlement to service connection for an eye disorder, to include as secondary to type II diabetes mellitus, is dismissed. Entitlement to service connection for a heart valve disorder, to include as due to herbicide agent exposure, is dismissed. FINDING OF FACT The Agency of Original Jurisdiction (AOJ) 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 served on active duty from September 1968 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, these matters were previously before the Board in September 2018, when they were remanded for further development. During the pendency of the appeal, an April 2020 rating decision granted an increased 60 percent rating for type II diabetes mellitus, effective January 28, 2020. See April 2020 Rating Decision – Narrative. As this rating is not the maximum allowable, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Lastly, the Board notes that the September 2018 Board remand included the issue of entitlement to service connection for glaucoma, to include as secondary to type II diabetes mellitus. However, during the pendency of the appeal, a November 2019 rating decision granted service connection for glaucoma. See November 2019 Rating Decision – Narrative. Accordingly, as the Veteran’s service connection claim has been granted, the issue is no longer in appellate status as there is no case or controversy presently before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). 1. Entitlement to an initial rating in excess of 20 percent, prior to January 28, 2020, and in excess of 60 percent thereafter, for type II diabetes mellitus is dismissed. 2. Entitlement to service connection for an eye disorder, to include as secondary to type II diabetes mellitus, is dismissed. 3. Entitlement to service connection for a heart valve disorder, to include as due to herbicide agent exposure, is dismissed. Unfortunately, the Veteran died during the pendency of the appeal. See December 2020 Correspondence; January 2021 Report of Death. 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. See 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. See 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; see 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). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, Attorney-Advisor 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.