Citation Nr: 21025833
Decision Date: 04/29/21	Archive Date: 04/29/21

DOCKET NO. 18-17 492
DATE: April 29, 2021

ORDER

Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD), also claimed as dementia, prior to October 14, 2019, is dismissed.

FINDING OF FACT

On April 12, 2021, the Board was notified that the appellant died in April 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 appellant served on active duty from June 1966 to June 1969.  This matter comes before the Board of Veterans’ Appeals (Board) from a July 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which awarded an increased rating of 50 percent for PTSD, effective April 4, 2017. In a March 2020 rating decision, the RO recharacterized the disability as dementia and sleep disturbances due to Parkinson’s disease with PTSD, and granted an increased evaluation of 100 percent, effective October 14, 2019.

1. Entitlement to a rating in excess of 50 percent for PTSD, also claimed as dementia, prior to October 14, 2019, 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 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).

 

 

D. JOHNSON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	B. Jake Choi, 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.