Citation Nr: 1749100	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  08-01 476	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to a disability rating in excess of 30 percent, prior to January 18, 2008, for posttraumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Rippel, Counsel


INTRODUCTION

The Veteran served on active duty from June 1968 to February 1970 and from November 1979 to November 1981.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO) that granted service connection and a 30 percent rating for PTSD, effective December 16, 2005.  The RO in December 2009 granted a 100 percent rating for PTSD, effective January 18, 2008, and the Veteran continued this appeal with respect to the period prior to that date.

In a February 2012 decision, the Board remanded this matter to the RO for necessary development.  The matter has since been returned to the Board for appellate review.

Unfortunately, the Veteran died during the pendency of this appeal, and the appeal will be dismissed.

FINDING OF FACT

In April 2017, the Board was notified by the RO that the appellant died in April 2017.


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.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2016). 


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) (West 2014); 38 C.F.R. § 20.1302 (2016).

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 (2016).  

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.A. § 5121A (West 2014); 38 C.F.R. § 3.1010(b) (2016).  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.A. § 5121A (West 2014); see 38 C.F.R. § 3.1010(a) (2016).  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 (listed on the first page of this decision).  38 C.F.R. § 3.1010(b) (2016). 


ORDER

The appeal is dismissed.




		
C. TRUEBA
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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