Citation Nr: A21017448
Decision Date: 10/27/21	Archive Date: 10/27/21

DOCKET NO. 210521-161338
DATE: October 27, 2021

ORDER

The appeal with respect to the propriety of a reduction in the amount of the appellant's survivors' pension benefits is dismissed.

FINDING OF FACT

The appellant died in September 2021, while the present appeal was pending.

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 in the United States Army from August 1945 to August 1946.  His decorations included the World War II Victory Medal.  Unfortunately, he died in April 1998.  The appellant was his surviving spouse.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2021 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  The RO, in pertinent part, reduced the amount of the appellant's survivors' pension benefits, effective January 1, 2021.  She timely appealed to the Board in May 2021, requesting the hearing review option.  38 C.F.R. §§ 20.201, 20.202(b)(2).

Dismissal

Unfortunately, the appellant died in September 2021, while the current appeal was pending.  As a matter of law, appellants' claims do not survive their deaths.  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).  This appeal on the merits has become moot by virtue of the death of the appellant and must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

In reaching this determination, the Board intimates no opinion as to the merits of this appeal or any derivative claim brought by a survivor of the appellant.  38 C.F.R. § 20.1106.

The Board's dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion.  Such request must be filed not later than one year after the date of the appellant's death.  38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b).  An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the VA office from which the claim originated.  38 C.F.R. § 3.1010(b).

To file a request for substitution, a claimant may use 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.  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/?facility Type=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.

 

 

DAVID A. BRENNINGMEYER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Ferguson, 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.