17-44 591

• Court: Board of Veterans' Appeals
• Decided: September 10, 2018
• Docket: 17-44 591
• Status: Unpublished

Opinion

Citation Nr: 1829854 Decision Date: 09/10/18 Archive Date: 09/24/18

DOCKET NO. 17-44 591 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho

THE ISSUES

1. Entitlement to a rating greater than 70 percent for posttraumatic stress disorder.

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability.

REPRESENTATION

Appellant represented by: Military Order of the Purple Heart of the U.S.A.

ATTORNEY FOR THE BOARD

M. Carsten, Counsel

INTRODUCTION

The Veteran served on active duty from November 1968 to May 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.

FINDING OF FACT

Evidence of record shows that the Veteran died in January 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); 38 C.F.R. § 20.1302.

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, 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. See 38 U.S.C.A. § 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). 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 Regional Office in Boise, Idaho. 38 C.F.R. § 3.1010(b).

ORDER

The appeal is dismissed.

DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs