Citation Nr: A21016763
Decision Date: 10/14/21	Archive Date: 10/14/21

DOCKET NO. 200714-85657
DATE: October 14, 2021

ORDER

Entitlement to service connection for interstitial pulmonary fibrosis, including as due to herbicide agent exposure, is dismissed.

FINDING OF FACT

In June 2021, the Department of Veterans Affairs (VA) was notified that the Veteran died on June [REDACTED], 2021.   

CONCLUSION OF LAW

Due to the death of the appellant, the Board of Veterans' Appeals (Board) has no jurisdiction to adjudicate the merits of the 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 March 1966 to March 1970.  He died on June [REDACTED], 2021.

This case comes to the Board from a February 2018 rating decision of the VA Regional Office.  In August 2018, the Veteran submitted a Notice of Disagreement under the prior Legacy appeal system, and in November 2019, VA issued a Statement of the Case.  The Veteran then submitted a VA Form 10182 Notice of Disagreement in July 2020, requesting a hearing with a Veterans Law Judge.  While this VA Form 10182 was not submitted within 60 days of the Statement of the Case, because the Veteran did initiate an appeal with a timely Legacy Notice of Disagreement, the Veterans Law Judge has waived the 60-day requirement.  See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (The 60-day period in which to file a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly.).  This issue was therefore appealed to the Board under the Appeals Modernization Act (AMA).  

In January 2021, the Veteran testified before the undersigned Veterans Law Judge.

Unfortunately, the appellant died 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

 

 

DELYVONNE M. WHITEHEAD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mary E. Rude, 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.