Citation Nr: 21006966
Decision Date: 02/08/21	Archive Date: 02/08/21

DOCKET NO. 06-35 258
DATE: February 8, 2021

ORDER

Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) for the period of September 19, 2003 to January 9, 2008, in excess of 70 percent for the period of January 10, 2008 to September 30, 2010, in excess of 50 percent from October 1, 2010 to November 13, 2016, and in excess of 70 percent from November 14, 2016 is dismissed.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed.

FINDING OF FACT

The Veteran passed away in December 2020.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board of Veterans’ Appeals (Board) has no jurisdiction to adjudicate the merits of his 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 had active service from June 1966 to April 1969, to include service in the Republic of Vietnam.

This matter comes before the Board from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  It was most recently before the Board in May 2019 where the issues were denied.  Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In June 2020, the Court granted a Joint Motion for Remand (JMR) in which the parties agreed to vacate the May 2019 decision and remand the matters back to the Board.  

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).  

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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). 

 

Nathan Kroes

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	R. Scarduzio, 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.