Citation Nr: 1734787	
Decision Date: 08/23/17    Archive Date: 08/30/17

DOCKET NO.  08-21 901	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD).

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


REPRESENTATION

Veteran represented by:	Kathy A. Lieberman, Attorney




ATTORNEY FOR THE BOARD

M. Coyne, Associate Counsel


INTRODUCTION


The Veteran served on active duty from September 1951 to September 1953.  He is the recipient of the Combat Infantryman's Badge.

This matter originally came before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated June 2007 and March 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

In a June 2011 Board decision, the claims were remanded for further evidentiary development.  The VA Appeals Management Center (AMC) continued the previous denials in a January 2012 supplemental statement of the case (SSOC).

In an August 2012 decision, the Board granted an initial disability rating of 50 percent, but no higher, for the service-connected PTSD and denied the claim of entitlement to a TDIU.  The Veteran appealed the August 2012 decision to the United States Court of Appeals for Veterans Claims (the Court).  In March 2013, the Court partially vacated the Board's decision and remanded the case to the Board for further consideration pursuant to a Joint Motion for Remand.  On October 22, 2013, the Board remanded these claims to the RO for additional development.  However, as discussed further below, documentation of the Veteran's September 30, 2013 death was subsequently associated with the claims file.

Although the Board is vacating the October 22, 2013 Board decision for reasons discussed further below, a determination by the RO as to the Veteran's eligibility to substitute for the Veteran is still pending with regard to the Veteran's widow.  Once the RO issues a substitution determination, the issues on appeal may be readjudicated with regard to an eligible substitute appellant.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).  


ORDER TO VACATE

The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence.  38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2016).    

On October 22, 2013, the Board remanded the issues on appeal.  However, at this time, documentation of the Veteran's death on September 30, 2013 had not yet been associated with the claims file.  As a matter of law, a Veteran's claim does not survive his death.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996).  Since the Veteran died prior to issuance of the Board's October 2013 decision on this matter, that decision must be vacated.  This decision does not impact the RO's pending substitution determination.

Accordingly, the October 22, 2013 Board decision addressing the issues of entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD and entitlement to a TDIU is vacated.



	S. L. Kennedy
	Veterans Law Judge, Board of Veterans' Appeals



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