Citation Nr: 21064444
Decision Date: 10/20/21	Archive Date: 10/20/21

DOCKET NO. 17-58 675
DATE: October 20, 2021

ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depressive disorder, is dismissed.

Entitlement to service connection for sleep apnea is dismissed.

FINDING OF FACT

In September 2021, the Board was notified that the Veteran died in September 2021.

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. § 7105 (2012); 38 C.F.R. § 19.55 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1973 to April 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2017 and July 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

The Board notes that, in order to provide the broadest and most sympathetic review, the claim for service connection for depression and anxiety has been recharacterized as a claim for service connection for an acquired psychiatric disorder, to include anxiety and depression.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the Board must consider any disability that "may reasonably be encompassed by" a description of the claim, symptoms reported, and other evidence).

Service Connection

1. Entitlement to service connection for an acquired psychiatric disorder to include anxiety and depressive disorder

2. Entitlement to service connection for sleep apnea

Unfortunately, the Veteran 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 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 appellant'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).

 

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. C. Slaughter, 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.