Citation Nr: 21065422
Decision Date: 10/26/21	Archive Date: 10/26/21

DOCKET NO. 14-01 451
DATE: October 26, 2021

ORDER

Service connection for a low back disorder is dismissed.

FINDING OF FACT

The Board of Veterans' Appeals (Board) was notified in October 2021 of the Veteran's death earlier that month.

CONCLUSION OF LAW

Due to the Veteran's death, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C. § 7104; 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1971 to August 1975.  This matter is on appeal from a February 2012 rating decision that denied service connection for low back degenerative changes.  Service connection for a low back disorder then was denied by the Board in an October 2017 decision.  However, the United States Court of Appeals for Veterans Claims issued a Memorandum Decision vacating that determination in May 2018.  The Board subsequently remanded for additional development in December 2019.  This matter has been returned to the Board following completion of that development.

Unfortunately, the Veteran died while his appeal was pending.  The Board indeed received notification in October 2021 of his death earlier that month.  As a matter of law, appellants' claims do not survive their deaths.  This matter therefore 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 on the merits.  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.

(Continued on the next page)

 

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 explaining who is eligible for accrued benefits here: https://benefits.va.gov/BENEFITS/factsheets/general/Accrued.pdf.

 

 

Thomas H. O'Shay

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Becker

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.