Citation Nr: 21063320
Decision Date: 10/13/21	Archive Date: 10/13/21

DOCKET NO. 20-28 100
DATE: October 13, 2021

ORDER

Entitlement to service connection for a right shoulder strain is dismissed. 

Entitlement to a rating in excess of 10 percent for tinnitus is dismissed. 

Entitlement to an effective date prior to October 26, 2018 for tinnitus is dismissed. 

FINDINGS OF FACT

On July 6, 2021, which was prior to the promulgation of a decision on the appeal, the Board was notified that the appellant died in June 2021. 

CONCLUSIONS OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal at this time. See 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302.

 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1995 to December 1999. He died in June 2021.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for tinnitus effective October 26, 2018 with a 10 percent disability rating and denied service connection for right shoulder strain. 

Unfortunately, the appellant died during the pendency of the appeal. As a matter of law, appellants' claims do not survive their deaths. Therefore, this appeal must be dismissed for lack of jurisdiction. See 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. See 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

 

 

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Smith, Associate 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.