Citation Nr: 21042086
Decision Date: 07/12/21	Archive Date: 07/12/21

DOCKET NO. 18-24 546
DATE: July 12, 2021

ORDER

The claim of entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD), formerly evaluated as other specified trauma, is dismissed. 

The claim of entitlement to a rating in excess of 20 percent for diabetes mellitus, type II is dismissed. 

FINDING OF FACT

In June 2021, the Veterans Affairs (VA) Regional Office, was notified that the Veteran died in June 2021. 

CONCLUSION OF LAW

Due to the Veteran's death, 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 FINDINGS AND CONCLUSIONS

The Veteran has active service from June 1968 to June 1971.  

This case is before the Board of Veterans' Appeals (Board) from January 2016 and December 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). 

Unfortunately, the Veteran died during the pendency of the appeal. As a matter of law, a Veteran's claim does not survive his death. 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. 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). 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; see 38 C.F.R. § 3.1010(a).  

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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).

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	P. A. Myers

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.