Citation Nr: 20021770 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-08 023 DATE: March 26, 2020 ORDER Entitlement to service connection for the cause of the Veteran's death is dismissed. FINDING OF FACT The Veteran’s surviving spouse died in October 2018. CONCLUSION OF LAW Due to the death of the surviving spouse, 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1949 to June 1973. He died in September 2016. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In this decision, the RO denied the Veteran’s surviving spouse entitlement to service connection for cause of the Veteran’s death. She timely filed and subsequently perfected an appeal of this determination to the Board. A February 2019 inquiry to the Social Security Administration by VA determined that the surviving spouse died in October 2018. The appellant has filed to substitute in this appeal. 1. Entitlement to service connection for the cause of the Veteran's death Unfortunately, the Veteran’s surviving spouse, the appellant of record as to the issue of entitlement to service connection for the cause of the Veteran’s death, 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 Veteran’s surviving spouse, and must be dismissed for lack of jurisdiction. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. In making this determination, the Board acknowledges that in December 2018, the appellant, the Veteran’s adult son, filed a VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant. On this form, the appellant stated an intent to substitute for the Veteran, and not the Veteran’s surviving spouse. In a May 2019 letter, VA informed the appellant he had been granted recognition as a substitute claimant. For the reasons to be discussed below, the Board has determined recognition of the appellant as a substitute claimant was made in error and without legal authority, and the pending appeal must be dismissed under the law. In September 2014, VA issued a regulation regarding substitution following a claimant’s death, which has been codified at 38 C.F.R. § 3.1010. See 38 U.S.C. § 5121A. That regulation states that if a claimant dies on or after October 10, 2008, a person eligible for accrued benefits under 38 C.F.R. § 3.1000(a)(1-5) may, in priority order, request to substitute for the deceased claimant in a claim for periodic monetary benefits under laws administered by VA, or an appeal of a decision with respect to such claim, that was pending before the AOJ or the Board when the claimant died. Upon a grant of a request to substitute, the substitute may continue the claim or appeal to completion. 38 C.F.R. § 3.1010(a). Unlike an accrued benefits claim, the record in a substitution claim is not closed on the date of death of the original claimant but remains open for submission and development of any pertinent additional evidence. In the present case, the claimant requested, on the December 2018 VA Form 21-0847, to substitute for the Veteran. His request cannot, however, be accepted, as the Veteran did not have a pending claim or appeal at his time of death. Review of the record prior to the Veteran’s September 2016 death does not indicate a pending claim or appeal for any VA benefit, and the appellant has not claimed as such or identified any pending claim or issue initiated by the Veteran. The regulation specifies that substitution may only be granted in a claim “that was pending before the agency of original jurisdiction or the Board of Veterans’ Appeals when the claimant died.” 38 C.F.R. § 3.1010(a). Moreover, 38 C.F.R. § 3.1010(b) requires that an application for substitution be filed within one year of the death of the claimant’s death. As such, the December 2018 request for substitution was untimely, based on the Veteran’s death in September 2016, more than one year prior. Insomuch as the appellant intended to file for substitution for Veteran’s surviving spouse, who had the present appeal pending at the time of her death, the law also prohibits such a substitution. 38 C.F.R. § 3.1010(a) limits substation to persons eligible for accrued benefits pursuant to 38 C.F.R. § 3.1000(a)(1)-(5). 38 C.F.R. § 3.1000(a)(1)(ii), (2) grants eligibility to the children of the Veteran or the Veteran’s surviving spouse. In the present case, the appellant has claimed as the child both of the Veteran and of the Veteran’s surviving spouse. 38 C.F.R. § 3.1000(d)(2), however, further defines “child” as a person under the age of 18, an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age, or an unmarried child over the age of 18 but not over 23 years of age, who was pursuing a course of instruction within the meaning of § 3.57 at the time of the payee's death. 38 C.F.R. §§ 3.57, 3.1000(d). The evidence of record indicates the appellant was over the age of 18 at the times of death of the Veteran and the Veteran’s surviving spouse, and he has not presented evidence that establishes he became permanently incapable of self-support prior to attaining age 18 or otherwise qualifies as the Veteran’s child pursuant to VA regulations. Indeed, the Board notes that prior to his death, the Veteran had not claimed the appellant as a dependent child past the age of 18 based on permanent incapacity for self-support or on any other eligible basis. As such, recognition of the appellant as the substitute of the Veteran’s surviving spouse is prohibited by law. The Board has also considered whether reimbursement of expenses paid for the last sickness and burial of the surviving spouse is warranted under 38 U.S.C. § 5121(a)(6). However, the appellant has not reported paying any of the expenses related to the last sickness and burial of the Veteran or the Veteran’s surviving spouse. As the appellant has not demonstrated expenses related to the last sickness and burial of any party, the Board finds that reimbursement for such expenses is not warranted under 38 U.S.C. § 5121(a)(6). In conclusion, the pending appeal must be dismissed based on the death of the Veteran’s surviving spouse, and the appellant may not, under the law, be recognized as a properly substituted party. In cases such as this, where the law is dispositive, the claim should be denied because of the absence of legal merit, and the benefit of the doubt doctrine does not apply. See Sabonis v. Brown, 6 Vet. App. 426 (1994) M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.