Citation Nr: 1749032	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  12-03 162	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling prior to August 12, 2016, and as 70 percent disabling therefrom.  

2.  Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to August 12, 2016. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Kovarovic, Associate Counsel 


INTRODUCTION

The Veteran had active duty service from May 1967 to October 1968.  He died in October 2017.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which continued the previous assignment of a 50 percent disability rating for PTSD and denied the Veteran entitlement to a TDIU.  The Veteran timely appealed that decision during his lifetime.

The claims were subsequently remanded by the Board in November 2014 and September 2015 for additional development, which has since been completed.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

In an August 2016 rating decision, the Veteran was awarded a 70 percent disability rating for his PTSD and entitlement to a TDIU, effective August 12, 2016.  As this does not constitute a complete grant of either claim, the appeals remain pending as stated on the title page.  

The Veteran testified as to these matters during a travel board hearing in August 2012.  A transcript of that hearing is of record.


FINDING OF FACT

In October 2017, VA was notified that the Veteran died in October 2017.


CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C.A. § 5121A, 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Regrettably, the Veteran died in October 2017, during the pendency of this appeal.  VA was informed of the Veteran's death that same month, via contact with the Veteran's son and a Social Security Administration report of death.  

As a matter of law, claims do not survive the death of the claimant.  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).  As such, this appeal has become moot by virtue of the death of the claimant and thus 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).

Further, 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 claims to completion.  Such request must be filed not later than one year after the date of the Veteran's death.  38 U.S.C.A § 5121A (West 2014); 38 C.F.R. § 3.1010 (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); 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 RO from which the claim originated.  38 C.F.R. § 3.1010(b) (2016).



ORDER

The appeal is dismissed.  



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.