Citation Nr: 21022009 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-24 905 DATE: April 14, 2021 ORDER The appeal for entitlement to higher staged ratings prostate cancer residuals, rated noncompensable prior to March 26, 2016, 20 percent from March 26, 2016, 10 percent from February 11, 2020, and 20 percent from January 22, 2021, is dismissed. FINDING OF FACT In March 2021, the Board received notification from the Social Security Administration that the appellant had died in March 2021. 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); 38 C.F.R. § 20.1302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1959 to April 1963 and from May 1963 to July 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The July 2015 rating decision decreased the Veteran’s evaluation for prostate cancer disability, from 100 percent to noncompensable, effective October 1, 2015. The Board recognizes that a claim stemming from a rating reduction action is a claim for restoration of the prior rating and, typically, does not contemplate a claim for an increased rating. Peyton v. Derwinski, 1 Vet. App. 292 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). However, in a December 2015 notice of disagreement as to the July 2015 rating decision, the Veteran indicated that an increased rating was also sought. Thereafter, a March 2016 statement of the case also framed the issue as an increased rating claim and addressed the claim on that basis. As a result, the Board the propriety of the reduction of the rating as well as a claim for entitlement to an increased disability rating for the Veteran’s service-connected prostate cancer residuals was on appeal. In this regard, in October 2020, the Board denied the appeal for restoration of a 100 percent rating for prostate cancer and remanded entitlement to a disability rating higher than 20 percent for prostate cancer residuals. A May 2020 rating decision, in part, also reduced the Veteran’s evaluation of prostate cancer residuals, from 20 percent to 10 percent, effective February 11, 2020, which the Veteran timely appealed. However, the May 2020 rating decision constitutes an initial decision, therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. As such, the Board does not have jurisdiction over this claim under AMA at the present time. Additionally, during the pendency of the claim for an increased rating for Veteran’s prostate cancer disability, a March 2016 rating decision granted an increased rating from noncompensable to 20 percent effective from March 24, 2016. Similarly, a February 2021 rating decision also granted an increased rating for the Veteran’s prostate cancer disability, from 10 percent to 20 percent effective from January 22, 2021. Because these awards do not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran’s appeal as to this issue remains for Board consideration. AB v. Brown, 6 Vet. App. 35, 38 (1993). Unfortunately, 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). In this regard, in March 2021, the Board received a response from an inquiry to the Social Security Administration, which reflected that the appellant died in March 2021. 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 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. 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). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.