Citation Nr: 21064095
Decision Date: 10/19/21	Archive Date: 10/19/21

DOCKET NO. 18-13 458
DATE: October 19, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

In September 2020, the Board of Veterans' Appeals (Board) was notified by the appellant's representative that she had died.

CONCLUSION OF LAW

Due to the death of the appellant, 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 September 1968 to September 1970.  He passed away in January 1998.  In this appeal, the appellant was seeking to be recognized as the Veteran's surviving spouse.  

This matter before the Board arose from a July 2017 decision by a Department of Veterans Affairs (VA) Regional Office (RO) which stopped the appellant's payments of Dependency and Indemnity Compensation (DIC) based on her no longer being considered the Veteran's surviving spouse for purposes of VA benefits.  The late appellant had requested a Board hearing in this appeal, but, unfortunately, she died before her requested hearing could be held.

As a matter of law, appellants' claims do not survive their deaths.  Thus, where the appellant died during the pendency of this appeal, the 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 an appellant's place in an 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 an appellant's death.  38 C.F.R. § 3.1010(b).  To file a request for substitution, VA Form 21P-0847, "Request for Substitution of Claimant Upon Death of Claimant," may be used, which can be found online at: https://www.vba.va.gov/pubs/forms/VBA-21P-0847-ARE.pdf.  

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

Department of Veterans Affairs

Pension Intake Center

PO Box 5365

Janesville, WI 53547-5365

The form may also be submitted directly to the nearest VA regional office.  To find the nearest VA regional office 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 located here: https://benefits.va.gov/BENEFITS/factsheets/general/Accrued.pdf

 

 

THERESA M. CATINO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Michael Wilson, 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.