Citation Nr: 21071359
Decision Date: 11/30/21	Archive Date: 11/30/21

DOCKET NO. 18-14 460
DATE: November 30, 2021

ORDER

The appeal with respect to entitlement to an initial compensable rating for bilateral hearing loss prior to February 1, 2018, and in excess of 10 percent thereafter, is dismissed.

The appeal with respect to entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder, is dismissed.

The appeal with respect to entitlement to service connection for macular degeneration is dismissed.

The appeal with respect to entitlement to service connection for hypertension is dismissed.

The appeal with respect to entitlement to service connection a right knee disability is dismissed.

The appeal with respect to entitlement to service connection a left knee disability is dismissed.

FINDING OF FACT

The Veteran died in October 2021, while the current appeal was pending.

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 in the United States Navy from January 1969 to March 1973.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 

Regarding the Veteran's claim for a higher rating for bilateral hearing loss, the Board notes that he was initially assigned a 0 (zero) percent (noncompensable) evaluation, effective June 4, 2012.  See October 2013 rating decision.  However, in March 2018, while the appeal was pending, the agency of original jurisdiction increased the rating to 10 percent, effective, February 1, 2018, which constituted a partial grant of the benefit sought.  See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed an NOD as to a RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).

In September 2021, prior to his death, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing has been associated with the record.

Dismissal

Unfortunately, the Veteran died in October 2021, while the current appeal was pending.  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. 

There are, however, provisions in place to allow an eligible person to take the Veteran's place in his appeal in order to get a final decision.  This process is called substitution.  The request to be substituted must be filed within one year of the Veteran's death.  38 C.F.R. § 3.1010(b).  To file a request for substitution, you may use VA Form 21P-0847, "Request for Substitution of Claimant Upon Death of Claimant," which can be found online here: 

https://www.vba.va.gov/pubs/forms/VBA-21P-0847-ARE.pdf.  

The completed form may be submitted electronically via ACCESSVA.  The web address for ACCESSVA is: 

https://eauth.va.gov/accessva/?cspSelectFor=dmhs.  Alternatively, you may mail the completed form to:

Department of Veterans Affairs

Pension Intake Center

PO Box 5365

Janesville, WI 53547-5365

You may also submit the form directly to your nearest VA Regional Office.  To find a VA regional office nearest you go to:

https://www.va.gov/find-locations/?facilityType=benefits.

Please note that only certain persons are eligible for substitution.  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).  There is a helpful factsheet that explains who is eligible for accrued benefits here: 

https://benefits.va.gov/BENEFITS/factsheets/general/Accrued.pdf.

In dismissing this appeal, the Board intimates no opinion as to the merits of the appeal or any derivative claim brought by a survivor of the Veteran.  38 C.F.R. § 20.1106. 

 

DAVID A. BRENNINGMEYER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Gielow, 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.