Citation Nr: 21029923 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 11-17 554 DATE: May 17, 2021 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with major depression is dismissed. FINDING OF FACT In December 2019, the Board was notified that the Veteran had died on November [REDACTED], 2019. 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 in the U.S Air Force from January 1953 to December 1953. The Board of Veteran's Appeals (Board) denied this claim in a March 2019 decision. In a March 2021 memorandum decision, the United States Court of Appeals for Veterans Claims (CAVC) vacated the March 2019 Board decision with respect to the claim appealed to the Court, due to the death of the Veteran in November 2019, and dismissed the appeal. Unfortunately, the Veteran passed away 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. See 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. See 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. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b). Unfortunately, at this time, it has been more than one year since the Veteran passed away on November 15, 2019, and no requests have been made. Additionally, the memorandum decision from CAVC noted the Veteran's prior attorneys stated that they had made numerous efforts to elicit a response from the Veteran's eligible substitute, but the eligible substitute had not returned a signed retainer agreement or the paperwork necessary to file the notice of death and a motion for substitution. The attorneys further stated that their efforts included sending four letters to the eligible substitute, three of which specifically warned that counsel would have to withdraw if a signed retainer agreement and substitution paperwork were not returned, as well as making multiple phone calls to the eligible substitute. Briley v. Shinseki, 25 Vet. App. 196, 197 (2012) (holding that, when an appellant dies during the pendency of an appeal and there is no eligible party for substitution, there is no case or controversy before the Court and the appeal should be dismissed for lack of jurisdiction); Breedlove v. Shinseki, 24 Vet. App. 7, 21 (2010) (per curiam order) ("[W]hen a veteran has died while an appeal is pending [at the Court], no one seeks substitution or the person seeking substitution is not an eligible accrued-benefits claimant, then Board vacatur and dismissal of the appeal would be the appropriate action."). For the reasons described above, this appeal has become moot by virtue of the death of the Veteran, and because the Board did not receive any requests that another party would be substituted for the Veteran within one year of her death, the appeal is dismissed. Briley, 25 Vet. App. at 197; Breedlove, 24 Vet. App. at 21. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.