Citation Nr: 21065995
Decision Date: 10/28/21	Archive Date: 10/28/21

DOCKET NO. 14-37 899
DATE: October 28, 2021

THE ISSUES

1. Entitlement to a total disability rating based on individual unemployability ("TDIU") due solely to service-connected degenerative changes of the lumbar spine and associated radiculopathy of the left and right lower extremities on an extraschedular basis prior to January 15, 2010.

2. Entitlement to an earlier effective date prior to June 2, 2008 for the grant of Dependents' Educational Assistance ("DEA").

ORDER

The Board decision addressing the issues of entitlement to a TDIU prior to January 15, 2010 and entitlement to DEA benefits prior to June 2, 2008, dated May 17, 2021 is vacated.

Entitlement to a TDIU due solely to service-connected degenerative changes of the lumbar spine and associated radiculopathy of the left and right lower extremities on an extraschedular basis prior to January 15, 2010 is dismissed.

Entitlement to an earlier effective date prior to June 2, 2008 for the grant of DEA is dismissed.

FINDINGS OF FACT

1. The Board issued a decision in this case on May 17, 2021, that granted the claims for entitlement to a TDIU prior to January 15, 2010 and entitlement to DEA benefits prior to June 2, 2008.

2. On June 1, 2021 notification was received showing that the Veteran died on May [REDACTED], 2021.

CONCLUSIONS OF LAW

1. Vacatur of the Board's May 17, 2021 decision is warranted. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.904 (2021).

2. 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 FINDINGS AND CONCLUSIONS

The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000 (2021).

In this case, the Veteran died two days prior to the Board issuing a decision on entitlement to a TDIU prior to January 15, 2010 and entitlement to DEA benefits prior to June 2, 2008. The Veteran's death preceded the Board decision, and as explained below a claim does not survive a claimant's death. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Because the claim does not survive the claimant's death, the Board did not have jurisdiction and therefore must vacate its May 17, 2021 decision.

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.  

Having vacated the prior decision, it is necessary for the Board to dismiss the appeals. The appeals of the Veteran on the merits have become moot by virtue of the death of the Veteran, and must be dismissed for lack of jurisdiction. See 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302 (2021). Accordingly, the appeals of the denial of entitlement to a TDIU prior to January 15, 2010 and entitlement to DEA benefits prior to June 2, 2008, must be dismissed.

(Continued on next page.)

The Board observes that the Veteran's spouse filed a request for substitution with the agency of original jurisdiction (AOJ). It appears that the AOJ has afforded the spouse the ability to substitute. The Board's dismissal of the Veteran's entitlement claims, for entitlement to a TDIU prior to January 15, 2010 and entitlement to DEA benefits prior to June 2, 2008, does not affect the right of his spouse to be substituted as the appellant for purposes of processing these claims to completion. See 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (b) (2021). Since the AOJ has granted the request to substitute, then the appeal returns to the same place on the Board's docket that it held at the time of the Veteran's death. 38 C.F.R. §§ 20.1302, 20.900; Natl Org. of Veterans Advocates, Inc. v. Sec'y of VA, 809 F.3d 1359 (2016). 

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. E. Geary, 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.