Citation Nr: 18143543 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 18-14 864 DATE: October 19, 2018 ORDER Entitlement to service connection for hepatitis B is dismissed. REMANDED Whether the appellant is eligible for substitution as a “surviving spouse” of the Veteran on is remanded. FINDINGS OF FACT 1. The Veteran in this case served on active duty from May 1952 to May 1954. 2. On October 4, 2018, the Board was notified by the Department of Veterans Affairs (VA) Regional Office, Montgomery, Alabama, that the Veteran died in August 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 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from May 1952 to May 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The appellant claims as the Veteran’s surviving spouse. Entitlement to service connection for hepatitis B Unfortunately, the appellant 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 appellant and must be dismissed for lack of jurisdiction. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302 (2018). 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 (2018). As discussed in the Remand below, 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. REASONS FOR REMAND Whether the appellant is eligible for substitution is remanded. As noted, Veteran died in August 2018, during the pendency of an appeal for service connection of hepatitis B. The appellant has been deemed to be a “surviving spouse” within the meaning of VA regulations. A specific request to substitute for a claimant must be made in writing with the AOJ by an eligible person no later than one year after the initial claimant’s death. An eligible survivor may submit a substitution request by filing a VA Form 21-601 Application for Accrued Amounts Due a Deceased Beneficiary, VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by Spouse or Child; VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant; or through any other communication indicating a desire to substitute for a deceased claimant. In this case, the appellant submitted a VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant in September 2018. Therefore, the appellant expressly requested that she be substituted as claimant based upon the death of the Veteran. 38 C.F.R. § 3.1010 (c)(2). However, a review of the entire claims file reveals that the RO has yet to issue a decision related to the surviving spouse’s request for substitution. Therefore, the Board finds that a remand is therefore required for a determination on whether the appellant is recognized as pursuing the claim of entitlement to service connection for hepatis B as a substitute for the Veteran. All determinations regarding a request to substitute must be made in the first instance by the AOJ, subject to the provisions of 38 C.F.R. § 20.1302. See 38 C.F.R. § 3.1010(b), (c)(1), (e). The AOJ’s decision in this regard is appealable. 38 C.F.R. § 3.1010(e)(2). In this case, the claim for substitution in this case has not been adjudicated by the RO, as is required by 38 C.F.R. § 3.1010(e) (effective October 6, 2014). The United States Court of Appeals for Veterans Claims has held that VA must comply with its own procedures related to applications for substituted claims. See Reliford v. McDonald, 27 Vet. App. 297 (2015). Furthermore, it does not appear that the appellant was provided with notice of the substitution regulation. See National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs, 809 F.3d 1359 (Fed. Cir. 2016) (upholding VA’s regulations requiring the AOJ to make the substitution determination even if a claim is pending before the Board). The matter is REMANDED for the following action: 1. Send the Veteran’s surviving spouse a notice letter that explains substitution pursuant to 38 C.F.R. § 3.1010. Afford the appellant the opportunity to submit additional evidence or argument in furtherance of the claim. Associate any records or responses received with the claims file, and undertake any reasonable indicated development. (Continued on the next page)   2. Adjudicate whether the surviving spouse is eligible to substitute for the deceased Veteran for the purpose of continuing the appeal for entitlement to service connection for hepatitis B. Send the surviving spouse appropriate notice with respect to her status as a substituted party, or lack thereof. 3. If the surviving spouse is deemed to be a proper substitute for continuing the claim of entitlement to service connection for hepatitis B, then readjudicate the claim after allowing her and her representative the appropriate time to submit evidence supportive of her contentions. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel