09-47 378 ( 2018 )

Citation Nr: 1829592
Decision Date: 06/21/18 Archive Date: 07/02/18
DOCKET NO. 09-47 378 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for peripheral neuropathy, left lower extremity, claimed as secondary to diabetes mellitus.
2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for peripheral neuropathy, right lower extremity, claimed as secondary to diabetes mellitus.
3. Entitlement to a rating in excess of 50 percent for the service-connected major depression.
4. Entitlement to an initial rating in excess of 60 percent for urinary voiding dysfunction due to Parkinson's Disease.
5. Entitlement to an initial rating in excess of 50 percent for swallowing/chewing impairment due to Parkinson's Disease.
6. Entitlement to an initial rating in excess of 50 percent for neurological impairment, right upper extremity, due to Parkinson's Disease.
7. Entitlement to an initial rating in excess of 40 percent for neurological impairment, left upper extremity, due to Parkinson's Disease.
8. Entitlement to an initial rating in excess of 40 percent for neurological impairment, right lower extremity, due to Parkinson's Disease.
9. Entitlement to an initial rating in excess of 40 percent for neurological impairment, left lower extremity, due to Parkinson's Disease.
10. Entitlement to an initial rating in excess of 20 percent for stooped posture due to Parkinson's Disease.
11. Entitlement to an initial compensable rating for erectile dysfunction due to Parkinson's Disease.
12. Entitlement to an initial compensable rating for loss of automatic face movements due to Parkinson's Disease.
13. Entitlement to an initial compensable rating for speech impairment due to Parkinson's Disease.
14. Entitlement to an earlier effective date for the grant of service connection for special monthly compensation at the rate of "K" based on loss of use of creative organ, currently effective from April 11, 2016.
15. Entitlement to an earlier effective date for the grant of basic eligibility to Dependents' Educational Assistance, currently effective from April 11, 2016.
16. Entitlement to an earlier effective date for the grant of service connection for urinary voiding dysfunction due to Parkinson's Disease, currently effective from April 11, 2016.
17. Entitlement to an earlier effective date for the grant of service connection for swallowing/chewing impairment due to Parkinson's Disease, currently effective from April 11, 2016.
18. Entitlement to an earlier effective date for the grant of service connection for neurological impairment, right upper extremity due to Parkinson's Disease, currently effective from April 11, 2016.
19. Entitlement to an earlier effective date for the grant of service connection for neurological impairment, left upper extremity due to Parkinson's Disease, currently effective from April 11, 2016.
20. Entitlement to an earlier effective date for the grant of service connection for neurological impairment, right lower extremity due to Parkinson's Disease, currently effective from April 11, 2016.
21. Entitlement to an earlier effective date for the grant of service connection for neurological impairment, left lower extremity due to Parkinson's Disease, currently effective from April 11, 2016.
22. Entitlement to an earlier effective date for the grant of service connection for stooped posture due to Parkinson's Disease, currently effective from April 11, 2016.
23. Entitlement to an earlier effective date for the grant of service connection for erectile dysfunction due to Parkinson's Disease, currently effective from April 11, 2016.
24. Entitlement to an earlier effective date for the grant of service connection for loss of automatic face movements due to Parkinson's Disease, currently effective from April 11, 2016.
25. Entitlement to an earlier effective date for the grant of service connection for speech impairment due to Parkinson's Disease, currently effective from April 11, 2016.
26. Entitlement to special monthly compensation at the rate of "L" based upon the need for aid and attendance.
REPRESENTATION
Appellant represented by: Robert V. Chisholm, Attorney
ATTORNEY FOR THE BOARD
A. Adamson, Counsel
INTRODUCTION
The Veteran served on active duty from December 1968 to December 1969.
These claims come before the Board of Veterans' Appeals (Board) on appeal from various rating decisions of the Department of Veterans Affairs Regional Office (RO) in Sioux Falls, South Dakota.
The matter related to the rating for depression was most recently before the Board and remanded in September 2016, at which time the issues related to whether new and material evidence was received to reopen service connection peripheral neuropathy of the right and left lower extremity, claimed as due to diabetes mellitus, were dismissed. The Veteran appealed the latter two claims to the Court of Appeals for Veterans Claims, after which the parties filed a Joint Motion for Partial Remand (JMPR). A January 2018 Court Order granted the JMPR and vacated the September 2016 decision as to the two peripheral neuropathy claims; thus, they are again within the Board's jurisdiction. The remaining claims on appeal stem from a June 2016 rating decision after which a July 2016 notice of disagreement was filed. The appeals were perfected following the August 2016 statement of the case by way of an August 2016 substantive appeal statement by the Veteran's representative.
FINDING OF FACT
A VA Form 27-0820a, Report of First Notice of Death, was associated with the claims file in July 2017, indicating that the Veteran died on July [redacted], 2017.
CONCLUSION OF LAW
Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeals listed in the issues caption, above, at this time. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
Unfortunately, the Veteran died during the pendency of the appeal. As a matter of law, the Veteran's claims do not survive his death. 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 each of the claims on appeal must be dismissed for lack of jurisdiction. See 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017).
In reaching this determination, the Board intimates no opinion as to the merits of the matters on appeal or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106 (2017).
The Board's dismissal of the matters on 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. § 5121A (2012); 38 C.F.R. § 3.1010(b) (2017). 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 (2012); see 38 C.F.R. § 3.1010(a) (2017). 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) (2017).
ORDER
The appeal of whether new and material evidence has been received to reopen a claim of entitlement to service connection for peripheral neuropathy, left lower extremity, claimed as secondary to diabetes mellitus, is dismissed.
The appeal of whether new and material evidence has been received to reopen a claim of entitlement to service connection for peripheral neuropathy, right lower extremity, claimed as secondary to diabetes mellitus, is dismissed.
The appeal of entitlement to a rating in excess of 50 percent for the service-connected major depression is dismissed.
The appeal of entitlement to an initial rating in excess of 60 percent for urinary voiding dysfunction due to Parkinson's Disease is dismissed.
The appeal of entitlement to an initial rating in excess of 50 percent for swallowing/chewing impairment due to Parkinson's Disease is dismissed.
The appeal of entitlement to an initial rating in excess of 50 percent for neurological impairment, right upper extremity, due to Parkinson's Disease is dismissed.
The appeal of entitlement to an initial rating in excess of 40 percent for neurological impairment, left upper extremity, due to Parkinson's Disease is dismissed.
The appeal of entitlement to an initial rating in excess of 40 percent for neurological impairment, right lower extremity, due to Parkinson's Disease is dismissed.
The appeal of entitlement to an initial rating in excess of 40 percent for neurological impairment, left lower extremity, due to Parkinson's Disease is dismissed.
The appeal of entitlement to an initial rating in excess of 20 percent for stooped posture due to Parkinson's Disease is dismissed.
The appeal of entitlement to an initial compensable rating for erectile dysfunction due to Parkinson's Disease is dismissed.
The appeal of entitlement to an initial compensable rating for loss of automatic face movements due to Parkinson's Disease is dismissed.
The appeal of entitlement to an initial compensable rating for speech impairment due to Parkinson's Disease is dismissed.
The appeal of entitlement to an earlier effective date for the grant of service connection for special monthly compensation at the rate of "K" based on loss of use of creative organ, currently effective from April 11, 2016, is dismissed.
The appeal of entitlement to an earlier effective date for the grant of basic eligibility to Dependents' Educational Assistance, currently effective from April 11, 2016, is dismissed.
The appeal of entitlement to an earlier effective date for the grant of service connection for urinary voiding dysfunction due to Parkinson's Disease, currently effective from April 11, 2016, is dismissed.
The appeal of entitlement to an earlier effective date for the grant of service connection for swallowing/chewing impairment due to Parkinson's Disease, currently effective from April 11, 2016, is dismissed.
The appeal of entitlement to an earlier effective date for the grant of service connection for neurological impairment, right upper extremity due to Parkinson's Disease, currently effective from April 11, 2016, is dismissed.
The appeal of entitlement to an earlier effective date for the grant of service connection for neurological impairment, left upper extremity due to Parkinson's Disease, currently effective from April 11, 2016, is dismissed.
The appeal of entitlement to an earlier effective date for the grant of service connection for neurological impairment, right lower extremity due to Parkinson's Disease, currently effective from April 11, 2016, is dismissed.
The appeal of entitlement to an earlier effective date for the grant of service connection for neurological impairment, left lower extremity due to Parkinson's Disease, currently effective from April 11, 2016, is dismissed.
The appeal of entitlement to an earlier effective date for the grant of service connection for stooped posture due to Parkinson's Disease, currently effective from April 11, 2016, is dismissed.
The appeal of entitlement to an earlier effective date for the grant of service connection for erectile dysfunction due to Parkinson's Disease, currently effective from April 11, 2016, is dismissed.
The appeal of entitlement to an earlier effective date for the grant of service connection for loss of automatic face movements due to Parkinson's Disease, currently effective from April 11, 2016, is dismissed.
The appeal of entitlement to an earlier effective date for the grant of service connection for speech impairment due to Parkinson's Disease, currently effective from April 11, 2016, is dismissed.
The appeal of entitlement to special monthly compensation at the rate of "L" based upon the need for aid and attendance is dismissed.
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs