Citation Nr: 21008185
Decision Date: 02/11/21	Archive Date: 02/11/21

DOCKET NO. 18-53 132
DATE: February 11, 2021

ORDER

Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is dismissed.

Entitlement to a rating in excess of 20 percent for a back disability is dismissed.

Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed.

FINDING OF FACT

In January 2021, VA was notified that the Veteran died on January [REDACTED], 2021.

CONCLUSIONS OF LAW

1. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of entitlement to an evaluation in excess of 70 percent for PTSD at this time.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

2. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of entitlement to an evaluation in excess of 20 percent for a back disability at this time.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

3. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of entitlement to TDIU at this time.  38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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.  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 Veteran’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).

 

 

DONNIE R. HACHEY

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Katie Poe, 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.