Citation Nr: 21039691
Decision Date: 07/01/21	Archive Date: 07/01/21

DOCKET NO. 20-18 168
DATE: July 1, 2021

ORDER

The appeal for entitlement to an effective date earlier than July 27, 2017, for the award of service connection for tinnitus is dismissed.  

The appeal for entitlement to an initial disability rating in excess of 10 percent for tinnitus is dismissed.  

The appeal for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression, is dismissed.  

The appeal for entitlement to service connection for diabetes mellitus, type II, is dismissed.  

The appeal for entitlement to service connection for erectile dysfunction is dismissed.  

The appeal for entitlement to service connection for headaches is dismissed.  

The appeal for entitlement to service connection for a heart disorder is dismissed.  

The appeal for entitlement to service connection for hypertension is dismissed.  

The appeal for entitlement to service connection for obstructive sleep apnea is dismissed.  

The appeal for entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed.  

FINDING OF FACT

In June 2021, prior to the promulgation of a decision in this appeal, the Board of Veterans' Appeals (Board) received notification through the First Notice of Death (FNOD) Program that the Veteran passed away in June 2021.  

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the issues on appeal at this time.  38 U.S.C. § 7104(a); 38 C.F.R.              § 20.1302.  

 

REASONS AND BASES FOR FINDING AND CONCLUSION

Preliminary Matters

The Veteran had honorable active duty service with the United States Army from January 1982 to January 1985.  

This matter is before the Board on appeal from a January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran claimed service connection for various mental health issues, including PTSD.  In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claimant seeks service connection for the symptoms of a disability, regardless of how those symptoms are diagnosed or labeled.  In consideration of this holding, the Board has recharacterized the claim as reflected on the title page.  

DISMISSAL

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 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 the issues on appeal or to any derivative claim brought by a survivor of the Veteran.  38 C.F.R. § 20.1106.  

The Board's dismissal of the issues on 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).

 

 

B. MULLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Y. MacDonald, 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.