11-09 881 ( 2016 )

Citation Nr: 1607910
Decision Date: 02/29/16 Archive Date: 03/04/16
DOCKET NO. 11-09 881 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
M. D. Bruce, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1970 to April 1972.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida.
FINDING OF FACT
The Veteran died in December 2015, before a decision by the Board was promulgated on appeal.
CONCLUSION OF LAW
Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claim of entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II, at this time. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2015); but see 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSION
Unfortunately, the Board received notice that the Veteran died during the pendency of the appeal. As a matter of law, appellants' claims do not survive their deaths. 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.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 (2015).
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; 38 C.F.R. § 3.1010(b). A person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title." 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 (listed on the first page of this decision).
38 C.F.R. § 3.1010(b).
ORDER
The appeal for entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II, is dismissed.
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ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs