Citation Nr: 21009456
Decision Date: 02/22/21	Archive Date: 02/22/21

DOCKET NO. 20-23 634
DATE: February 22, 2021

ORDER

The appeal for entitlement to an increased initial rating for posttraumatic stress disorder (PTSD) and major depressive disorder is dismissed.

The appeal for entitlement to an effective date prior to May 4, 2017, for the grant of service connection for PTSD and major depressive disorder is dismissed.

The appeal for entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. 

FINDING OF FACT

In January 2021, the Board received notification that the Veteran passed away in January 2021.

CONCLUSION OF LAW

Due to the death of the claimant, the Board has no jurisdiction to adjudicate the merits of the claims for entitlement to an increased initial rating for PTSD and major depressive disorder, an effective date prior to May 4, 2017 for the grant of service connection for PTSD and major depressive disorder, and entitlement to a TDIU at this time.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2020).

REASONS AND BASES FOR FINDING AND CONCLUSION

The claimant served on active duty from September 1972 to June 1973. These matters come before the Board of Veterans’ Appeals (Board) from a December 2017 of the Department of Veterans Affairs (VA) Regional Office (RO). 

Unfortunately, the claimant passed away 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 claimant and must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. 

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 claimant for purposes of processing the claim to completion.  Such request must be filed not later than one year after the date of the claimant’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 RO.  38 C.F.R. § 3.1010(b).

 

 

K. A. BANFIELD

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. C. Birder

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.