Citation Nr: 21065465
Decision Date: 10/26/21	Archive Date: 10/26/21

DOCKET NO. 18-25 611
DATE: October 26, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

In April 2019, the Board of Veterans' Appeals (Board) was notified that the appellant had died in March 2019.

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 June 1942 to June 1946.  He passed away in May 2013.  The appellant in this appeal was his surviving spouse.  The current appeal for an effective date prior to July 11, 2017, for the award of special monthly pension based on the need for aid and attendance for the Veteran's surviving spouse comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  

The appellant had been scheduled to appear for a Board hearing before a Veterans Law Judge.  Unfortunately, she passed away before her hearing could be held. 

As a matter of law, appellants' claims do not survive their deaths.  As 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.

Certain provisions 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.  Requests for substitution must be filed within one year of the appellant's death.  38 C.F.R. § 3.1010(b).  Such requests may be filed on VA Form 21P-0847, "Request for Substitution of Claimant Upon Death of Claimant," which can be found online at: https://www.vba.va.gov/pubs/forms/VBA-21P-0847-ARE.pdf.   Only certain persons are eligible for substitution, including "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).  A helpful factsheet that explains who is eligible for accrued benefits is available 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.