Citation Nr: 21064492
Decision Date: 10/20/21	Archive Date: 10/20/21

DOCKET NO. 20-06 886
DATE: October 20, 2021

ORDER

The issue of an increased rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is dismissed.

The issue of whether new and material evidence has been received to reopen service connection for hypertension is dismissed.

FINDING OF FACT

In September 2021, VA received notice that the Veteran died in the same month while this appeal was pending.

CONCLUSIONS OF LAW

1. The criteria for dismissal of entitlement to an increased rating in excess of 30 percent for PTSD have been met.  38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302.

2. The criteria for dismissal of entitlement to service connection for hypertension have been met.  38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty from June 1969 to August 1970.  The Veteran died during the pendency of the appeal in September 2021, prior to a Board decision on 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.  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.

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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).

 

 

K.A. KENNERLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. McDuffie, 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.