15-34 180

• Court: Board of Veterans' Appeals
• Decided: September 19, 2018
• Docket: 15-34 180
• Status: Unpublished

Opinion

Citation Nr: 1829871 Decision Date: 09/19/18 Archive Date: 09/24/18

DOCKET NO. 15-34 180 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona

THE ISSUES

Entitlement to a rating in excess of 70 percent for a psychiatric disability.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

H. Ahmad, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1963 to March 1969.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.

FINDING OF FACT

On August 14, 2018, VA was notified that the appellant died in August 2018.

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) (2012); 38 C.F.R. § 20.1302 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

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 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330 (1997); Landicho v. Brown, 7 Vet. App. 42 (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) (2012); 38 C.F.R. § 20.1302 (2017).

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 (2017).

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. Any request must be filed not later than one year after the date of the appellant's death. 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010(b) (2017). A person eligible for substitution includes a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C. § 5121(a). 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010(a) (2017). 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) (2017).

ORDER

The appeal is dismissed.

Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs