Citation Nr: 21009905
Decision Date: 02/23/21	Archive Date: 02/23/21

DOCKET NO. 15-24 972
DATE: February 23, 2021

ORDER

Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II, is dismissed.

Entitlement to higher initial ratings for posttraumatic stress disorder (PTSD), evaluated as noncompensable prior to August 12, 2019, and as 70 percent disabling since August 12, 2019, is dismissed.

FINDING OF FACT

On December 1, 2020 the Board of Veterans’ Appeals (Board) was notified that the appellant died in November 2020.

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from May 1966 to January 1969.  

This case comes before the Board on appeal from a July 2014 Rating Decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  

In April 2016, the Veteran, as well as his wife and son, testified before the undersigned Veterans Law Judge at a Travel Board hearing.  A transcript of that hearing has been associated with the claims file.

These issues were previously before the Board in September 2018, at which time they were remanded for additional development.  The Board acknowledges that its September 2018 Remand also addressed the issues of entitlement to service connection for melanoma and a heart disability.  However, in a July 2020 Rating Decision, the RO granted entitlement to service connection for malignant melanoma as well as for atherosclerotic cardiovascular disease and coronary artery disease.  As these constitute full grants of the benefits sought on appeal with respect to these issues, they are no longer before the Board.  

Unfortunately, the Veteran, who is the appellant, 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 appellant 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 states 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.  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).

 

 

ROBERT C. SCHARNBERGER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Anthony M. Flamini

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.