Citation Nr: 21026904 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 95-14 517 DATE: May 4, 2021 ORDER Prior to August 20, 2007, entitlement to a rating greater than 20 percent for residuals, right acromial clavicle separation, is dismissed. From August 20, 2007, entitlement to a rating greater than 40 percent for residuals, right acromial clavicle separation, is dismissed. Entitlement to a rating greater than 10 percent for a surgical scar, right shoulder, is dismissed. Entitlement to an effective date earlier than August 13, 2002 for the grant of a total disability based upon individual unemployability (TDIU) is dismissed. FINDING OF FACT In March 2021, the Board of Veterans' Appeals (Board) was notified the Veteran died in March 2021. CONCLUSION OF LAW Due to the Veteran's death, the Board does not have jurisdiction to adjudicate the merits of his appeal. The criteria for dismissal have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1973 to January 1975 with additional service in the National Guard. The Veteran died in March 2021. The Veteran, as relevant here, claimed an increased rating for his right shoulder on January 31, 1992. The Agency of Original Jurisdiction (AOJ) construed this claim to include an increased rating claim for a right shoulder scar and a TDIU. The AOJ decided the claim in a July 1994 rating decision, the decision upon which this appeal is based. The appeal has evolved over nearly 27 years, so the Board will summarize where it was as of the Veteran's death. Shoulder For the shoulder issues, the AOJ denied the increased rating claim in the July 1994 rating decision. The Veteran appealed the denial in August 1994. The AOJ, in turn, issued a Statement of the Case (SOC) in March 1995. The Veteran, in turn, perfected his appeal via an April 1995 VA Form 9. That set in motion the appeal of Issues 1 and 2 listed on the title page above. Scar VA, in a July 1985 rating decision, service connected a "tender surgical scar, right shoulder." It rated the scar as 10 percent disabling, effective November 8, 1984. In July 1994, the AOJ denied an increased rating for a "service-connected residual surgical scar, right shoulder." The Veteran appealed the denial in August 1994. The AOJ, in turn, issued a SOC in March 1995. The Veteran, in turn, perfected his appeal via an April 1995 VA Form 9. That set in motion the appeal of Issue 3 listed on the title page above. However, more explanation is needed. The Board listed the scar issue as an appellate issue in its March 2007, March 2011, and March 2017 Remands of this appeal. Moreover, the AOJ listed it as an appellate issue in its June 2018 Supplemental Statement of the Case (SSOC). However, in a June 2018 rating decision, the AOJ, also purported to awarded service connection for a "tender surgical scar, right shoulder." It rated this scar as 0 percent disabling, effective May 8, 2018. The codesheet accompanying the June 2018 rating decision shows two scars a) a "tender surgical scar, right shoulder," service connected effective November 8, 1984, and rated 10 percent disabling since that effective date, and b) a "tender surgical scar, right shoulder," service connected effective May 8, 2018, and rated 0 percent disabling since that effective date. In October 2018, the Veteran's representative did not address the increased rating scar issue in its VA Form 646, Statement of Accredited Representative. In November 2018, the Board did not address the increased rating scar issue when it considered the appeal. The Board, at that time, remanded the appeal for additional development of other issues. In December 2020, while the appeal was on remand, the AOJ, in a rating decision, awarded a November 8, 1984 effective date for the right shoulder scar it purported to service connect in June 2018. In so doing, the AOJ noted that "this issue is inextricably intertwined with the issue on appeal." Nevertheless, the AOJ did not list an increased rating for a right shoulder scar in its December 2020 SSOC. Additionally, the codesheet accompanying the December 2020 rating decision shows two scars a) a "tender surgical scar, right shoulder," service connected effective November 8, 1984, and rated 10 percent disabling since that effective date, and b) a "surgical scar, right shoulder," service connected effective November 8, 1984, and rated 0 percent disabling since that effective date. Faced with this procedural history, the Board believes the AOJ erred in June 2018. It believes the Veteran had one service-connected right shoulder scar when he died. Moreover, neither the Board nor the AOJ resolved the appeal of the increased rating claim, so the Board finds it was on appeal as of the Veteran's death. TDIU The AOJ denied a TDIU in the July 1994 rating decision. The Veteran seemingly appealed the denial in August 1994. However, the AOJ didn't include TDIU as an issue in the March 1995 SOC. When the appeal came to the Board for the first time in March 2007, the Board stated that the AOJ denied a TDIU in a September 2003, not July 1994, rating decision, and that the Vet appealed the denial in September 2004. The AOJ had not, as of March 2007, issued a SOC in response to the September 2004 appeal, so the Board remanded for the AOJ to issue a SOC. As the TDIU issue was on remand, the U.S. Court of Appeals for Veterans Claims (CAVC) issued Rice v. Shinseki, 22 Vet. App. 447 (2009), in May 2009. The AOJ then issued the SOC in August 2009. The Vet did not perfect an appeal of any of the issues in the August 2009 SOC, to include the TDIU. Nevertheless, the Board found, in March 2011 that TDIU was on appeal because of Rice. The Board, at that time, remanded the TDIU issue for additional development. As the TDIU issue was on remand, the AOJ, in March 2016, granted a TDIU, effective September 19, 2007. Notwithstanding this, the Board, in March 2017, found that entitlement to an effective date earlier than September 19, 2007 for the grant of a TDIU was on appeal despite the AOJ's grant because it did not cover the entire period on appeal. This decision predated the CAVC's issuance of Harper v. Wilkie, 30 Vet. App. 356 (2018) in December 2018, but it is harmonious with it. Therefore, the Board, at that time, remanded the TDIU issue for additional development, and it returned to the Board in November 2018. The Board, at that time, again found that entitlement to an effective date earlier than September 19, 2007 for the grant of a TDIU was on appeal for the same reasons as in March 2017. It remanded the issue for additional development. As the issue was on remand, the AOJ, in December 2020, granted an earlier effective date, August 13, 2002, on an extraschedular basis. It appears the AOJ selected this date based on how the Board initially described the TDIU issue in its March 2007 Remand. Nevertheless, the Board now finds that, under Harper and Rice, the TDIU ties back to the July 1994 rating decision and the increased rating appeal for the right shoulder. Therefore, the issue of entitlement to an effective date earlier than August 13, 2002 for the grant of a TDIU remains on appeal as described in Issue 4 on the title page above. Dismissal As a matter of law, appellants' claims do not survive their deaths. Zevalkink v. Brown, 102 F. 3d 1236, 1243-44 (Fed. Cir. 1996). The Veteran died in March 2021 as this appeal was pending. Therefore, his appeal is moot, and the Board must dismiss it for lack of jurisdiction. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. 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. Moreover, the Board's dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted for the Veteran 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). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.