Citation Nr: 21023104
Decision Date: 04/20/21	Archive Date: 04/20/21

DOCKET NO. 17-14 570
DATE: April 20, 2021

ORDER

Due to the death of the appellant, the claim for a higher rating for heart disability prior to May 4, 2016, is dismissed.

Due to the death of the appellant, the claim for a higher rating for glaucoma with ocular hypertension is dismissed.

FINDING OF FACT

On April 14, 2021, the Board was notified that the Veteran 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 (appellant) served on active duty from January 1963 to July 1966.

These matters came before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).  

The appellant testified at an October 2019 hearing before the undersigned Veterans Law Judge (VLJ).  A hearing transcript is associated with the record. In December 2019 and November 2020, the Board remanded the appeal.

An August 2020 rating decision granted a 100 percent rating for ischemic heart disease from January 30, 2020.  Later, the originating agency granted a 60 percent rating from April 9, 2014, and a 100 percent rating from May 4, 2016, for heart disease. Also, it granted a 60 percent rating fro glaucoma with ocular hypertension from August 21, 2019. However, as the awards did not represent a full grant of the benefit sought on appeal, the claim for higher ratings, they remained in appeal status until the death of the appellant, as addressed below. See AB v. Brown, 6 Vet. App. 35 (1993).

1. Entitlement to a higher rating for heart disability prior to May 4, 2016, is dismissed.

2. Entitlement to a higher rating for glaucoma with ocular hypertension is dismissed.

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).  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 appellant.  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).

 

 

C.A. SKOW

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G. T. Raftery, 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.