Citation Nr: 21062634
Decision Date: 10/08/21	Archive Date: 10/08/21

DOCKET NO. 14-32 351A
DATE: October 8, 2021

ORDER

Entitlement to an evaluation in excess of 20 percent disabling for service-connected spondylolisthesis is dismissed.

Entitlement to an evaluation in excess of 10 percent disabling for service-connected radiculopathy of left lower extremity prior to May 13, 2015 and in excess of 20 percent thereafter is dismissed.

FINDINGS OF FACT

The Veteran died in September 2021 while the issues of entitlement to an evaluation in excess of 20 percent disabling for spondylolisthesis and entitlement to an evaluation in excess of 10 percent disabling for radiculopathy of left lower extremity prior to May 13, 2015 and in excess of 20 percent thereafter were on appeal.

CONCLUSIONS OF LAW

1. The criteria for dismissal of entitlement to an evaluation in excess of 20 percent disabling for service-connected spondylolisthesis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for dismissal of entitlement to an evaluation in excess of 10 percent disabling for service-connected radiculopathy of left lower extremity prior to May 13, 2015 and in excess of 20 percent thereafter have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In a November 2019 decision, the Board of Veterans' Appeals (Board) remanded the Veteran's appeal as to the issues of entitlement to increased ratings for service-connected spondylolisthesis of the lumbosacral spine, radiculopathy of the right lower extremity and radiculopathy of the left lower extremity, as well as entitlement to a total disability rating based on individual unemployability (TDIU).  In an August 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran opted the issues of an increased rating for right lower extremity radiculopathy and an earlier effective date for TDIU into the modernized review system, also known as the Appeals Modernization Act (AMA).  Thus, only the issues of entitlement to an increased rating for spondylolisthesis of the lumbosacral spine and radiculopathy of the left lower extremity remain in the legacy appeals system and are discussed herein.  The Board notes that the Veteran additional has appeals in the AMA system on the issues of entitlement to an increased rating for hypertension and entitlement to special monthly compensation based on a need for aid and attendance.  AMA appeals must be addressed in a separate decision.

Unfortunately, the Veteran died during the pendency of this appeal. As a matter of law, appellants' claims do not survive their deaths.  Therefore, this appeal must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

There are, however, provisions in place to allow for an eligible person to take the Veteran's place in his appeal in order to get a final decision.  This process is called substitution.  The request to be substituted must be filed within one year of the Veteran's death.  38 C.F.R. § 3.1010(b).  To file a request for substitution, you may use VA Form 21P-0847, "Request for Substitution of Claimant Upon Death of Claimant," which can be found online here: https://www.vba.va.gov/pubs/forms/VBA-21P-0847-ARE.pdf. 

The completed form may be submitted electronically via ACCESSVA.  The web address for ACCESSVA is https://eauth.va.gov/accessva/?cspSelectFor=dmhs.  Alternatively, you may mail the completed form to:

Department of Veterans Affairs

Pension Intake Center

PO Box 5365

Janesville, WI 53547-5365

You may also submit the form directly to your nearest VA regional office.  To find a VA regional office nearest you go to https://www.va.gov/find-locations/?facilityType=benefits.

Please note that only certain persons are eligible for substitution.  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; 38 C.F.R. § 3.1010(a).  There is a helpful factsheet that explains who is eligible for accrued benefits here: https://benefits.va.gov/BENEFITS/factsheets/general/Accrued.pdf

 

 

H. SEESEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Christensen

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.