Citation Nr: 21064341
Decision Date: 10/19/21	Archive Date: 10/19/21

DOCKET NO. 18-05 993A
DATE: October 19, 2021

ORDER

Entitlement to a disability rating greater than 10 percent for a lumbar spine compression fracture is dismissed.

FINDING OF FACT

In August 2021, VA was notified that the Veteran passed away that month.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal for an increased rating for a lumbar spine compression fracture at this time. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from January 1959 to July 1980. 

Unfortunately, the Veteran passed away 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.  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

The Board observes that in this case, J.S.L. filed a VA Form 21P-0847 in September 2021, which is within one year of the date of the Veteran's death. However, a determination has not yet been made by the AOJ as to whether she can be recognized as a substitute.

Therefore, until substitution has been accomplished, the Board cannot take any further action on the pending appeal.  If substitution is granted, the case will be restored to its place on the docket.

For the reasons described above, the Veteran's appeal must be dismissed.

 

 

V. Chiappetta

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Crohe, 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.