Citation Nr: 21071362 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-29 507 DATE: November 30, 2021 ORDER Service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), other than major depressive disorder (MDD)/unspecified depressive disorder, is dismissed. An initial rating higher than 10 percent for lumbar strain with degenerative lumbar disc disease prior to January 9, 2015; higher than 20 percent from January 9, 2015 to May 21, 2019; and higher than 40 percent thereafter, is dismissed. A rating higher than 10 percent for radiculopathy of the right lower extremity is dismissed. A rating higher than 10 percent for radiculopathy of the left lower extremity is dismissed. An initial rating higher than 50 percent for bronchitis and sleep apnea is dismissed. FINDING OF FACT The appellant died in October 2021 prior to a final Board decision. CONCLUSION OF LAW Due to the death of the appellant, the criteria for a dismissal of the appeal are met. 38 U.S.C. § 7104; 38 C.F.R. § 20.1302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1973 to January 1976. The case is on appeal from a March 2012 rating decision. Most recently, in an October 2020 decision, the Board granted service connection for type II diabetes mellitus and sleep apnea and remanded the issue of service connection for a psychiatric disorder, to include PTSD, other than MDD, as well as higher rating claims for lumbar strain with degenerative lumbar disc disease and radiculopathy of the right and left lower extremity, along with an initial compensable rating claim for bronchitis, for additional development. While on remand, by rating decision in October 2020, the RO assigned an initial single 50 percent rating for bronchitis and sleep apnea. In an August 2021 rating decision, the rated service-connected MDD as unspecified depressive disorder. See August 2021 rating decision. As such, the issues on appeal have been recharacterized as reflected on the title page. 1. Service connection for a psychiatric disorder, to include PTSD, other than MDD/unspecified depressive disorder. 2. An initial rating higher than 10 percent for lumbar strain with degenerative lumbar disc disease prior to January 9, 2015; higher than 20 percent from January 9, 2015 to May 21, 2019; and higher than 40 percent thereafter. 3. A rating higher than 10 percent for radiculopathy of the right lower extremity. 4. A rating higher than 10 percent for radiculopathy of the left lower extremity. 5. An initial rating higher than 50 percent for bronchitis and sleep apnea. Unfortunately, the Veteran died during the pendency of the appeal. In November 2021, prior to a final Board decision on the matter, a Social Security Administration database record was associated with the claims file that shows the Veteran passed away in October 2021. 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. 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. 38 C.F.R. § 3.1010(b). RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.