Citation Nr: 21068487
Decision Date: 11/10/21	Archive Date: 11/10/21

DOCKET NO. 16-34 187
DATE: November 10, 2021

ORDER

The claim for an effective date earlier than November 23, 2012 for the grant of service connection for larynx cancer is dismissed.

The claim for an effective date earlier than November 23, 2012 for the grant of service connection for PTSD and major depressive disorder is dismissed.

The claim for a rating in excess of 70 percent for PTSD and major depressive disorder is dismissed.

The claim for an effective date earlier than November 23, 2012 for the grant of special monthly compensation (SMC) based on housebound criteria is dismissed.

The claim for an effective date earlier than November 23, 2012 for grant of basic eligibility to Dependents' Educational Assistance (DEA) is dismissed. 

FINDINGS OF FACT

1.  The Veteran died in January 2013.

2. The Board was notified that the Veteran's spouse died in June 2021.

CONCLUSIONS OF LAW

Due to the death of the Veteran and his spouse, 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 FINDINGS AND CONCLUSIONS

The Veteran had active service from October 1967 to October 1969. 

He died in January 2013. His then surviving spouse (the Appellant) was recognized by VA as the appropriate substitute for the claims on this appeal.  

A rating decision dated March 2014 granted service connection for larynx cancer with a total rating effective November 23, 2012, granted service connection for PTSD and major depressive disorder with a 70 percent rating effective November 23, 2012, and granted SMC and DEA eligibility both effective November 23, 2012.  The Appellant appealed for an earlier effective date for these benefits and a higher rating for PTSD and major depressive disorder.

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 Appellant.  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).

 		 

 

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Q. Wang, 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.