Citation Nr: 18160482 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 17-46 773 DATE: December 26, 2018 ORDER The appeal as to the claim of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral eye disability is dismissed due to the Veteran’s death. The appeal as to the claim of entitlement to service connection for hypertension is dismissed due to the Veteran’s death. The appeal as to the claim of entitlement to service connection for diabetes is dismissed due to the Veteran’s death. The appeal as to the claim of entitlement to service connection for a urinary disability is dismissed due to the Veteran’s death. The appeal as to the claim of entitlement to a rating in excess of 10 percent for tinnitus is dismissed due to the Veteran’s death. The appeal as to the claim of entitlement to a rating in excess of 20 percent (from September 5, 2014 through December 5, 2017) and a rating in excess of 10 percent (from December 6, 2017) for Reiter’s syndrome of the left ankle with Achilles tendonitis and degenerative arthritis is dismissed due to the Veteran’s death. The appeal as to the claim of entitlement to a rating in excess of 20 percent (from September 5, 2014 through December 5, 2017) and a rating in excess of 10 percent (from December 6, 2017) for Reiter’s syndrome of the right ankle with Achilles tendonitis and degenerative joint disease is dismissed due to the Veteran’s death. The appeal as to the claim of entitlement to a rating in excess of 10 percent (from September 5, 2014 through May 16, 2016), a rating in excess of 20 percent (from May 17, 2016 through December 5, 2017), and a rating in excess of 40 percent (from December 6, 2017) for Reiter’s syndrome of the lumbar spine with degenerative joint and disc disease is dismissed due to the Veteran’s death. The appeal as to the claim of entitlement to a rating in excess of 20 percent (from September 5, 2014) for left shoulder degenerative arthritis is dismissed due to the Veteran’s death. The appeal as to the claim of entitlement to a rating in excess of 20 percent (from September 5, 2014) for right shoulder degenerative arthritis is dismissed due to the Veteran’s death. The appeal as to the claim of entitlement to an effective date prior to September 5, 2014 for the award of service connection for migraine headaches is dismissed due to the Veteran’s death. The appeal as to the claim of entitlement to an initial rating in excess of 30 percent (prior to December 6, 2017) and an initial rating in excess of 50 percent (from December 6, 2017) for migraine headaches is dismissed due to the Veteran’s death. The appeal as to the claim of entitlement to an effective date prior to September 5, 2014 for the award of a 30 percent rating for an acquired psychiatric condition to include posttraumatic stress disorder (PTSD) and major depressive disorder is dismissed due to the Veteran’s death. The appeal as to the claim of entitlement to a rating in excess of 30 percent (from September 5, 2014 through December 5, 2017) and a rating in excess of 50 percent (from December 6, 2017) for an acquired psychiatric condition to include PTSD and major depressive disorder is dismissed due to the Veteran’s death. The appeal as to the claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) (prior to December 6, 2017) is dismissed due to the Veteran’s death. FINDING OF FACT In December 2018, the Board was notified that the Veteran died in November 2018. 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. § 7104(a); 38 C.F.R. § 20.1302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1996 to July 2004. Unfortunately, the Veteran 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 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 claims to completion. Such request must be filed not later than one year after the date of the Veteran’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 office from which the claim originated. 38 C.F.R. § 3.1010(b). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. B. Yantz, Counsel
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