10-03 916
10-03 916
Board of Vet. App.Jan 31, 2017Background
- Veteran served on active duty from January 1966 to January 1969 and appealed VA disability ratings for diabetes mellitus with erectile dysfunction and bilateral lower‑extremity diabetic peripheral neuropathy, and for TDIU.
- Procedural history: initial RO decision in June 2009; hearings in Sept. 2010 (DRO) and Aug. 2011 (Board VLJ); Board remands in Nov. 2011 and July 2014; RO assigned 20% ratings for bilateral neuropathy effective April 29, 2011 (Aug. 2012).
- Veteran testified before the Board in August 2011 and declined a rehearing after being notified of the hearing judge’s departure in June 2016.
- The Veteran died in October 2016 while the appeal remained pending; the Board was notified of his death in November 2016.
- The Board dismissed the appeal as moot because claims do not survive the appellant’s death, while noting that substitution by an eligible survivor is possible within one year.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. > Whether entitlement to >20% for diabetes with ED should be granted | Veteran sought higher rating for diabetes/ED | VA opposed higher rating based on record | Appeal dismissed as moot due to Veteran’s death |
| 2. > Whether left LE neuropathy rating >10% prior to 4/29/2011 and >20% thereafter | Veteran sought higher ratings for left neuropathy | VA maintained existing ratings assigned by RO | Appeal dismissed as moot due to death |
| 3. > Whether right LE neuropathy rating >10% prior to 4/29/2011 and >20% thereafter | Veteran sought higher ratings for right neuropathy | VA maintained existing ratings | Appeal dismissed as moot due to death |
| 4. > Entitlement to TDIU | Veteran sought TDIU based on service‑connected disabilities | VA opposed TDIU as currently denied | Appeal dismissed as moot due to death |
Key Cases Cited
- Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996) (establishes that veterans’ claims do not survive death)
- Smith v. Brown, 10 Vet. App. 330 (1997) (claims moot if appellant dies while appeal pending)
- Landicho v. Brown, 7 Vet. App. 42 (1994) (same principle regarding nonsurvivability of claims)