Citation Nr: 21067509 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-00 386A DATE: November 4, 2021 ORDER The appeal is dismissed. FINDINGS OF FACT 1. The Veteran died in November 2017 with claims pending before the Board of Veterans' Appeals. 2. The Appellant, who was the Veteran's properly substituted surviving spouse, died in February 2019. CONCLUSION OF LAW Because the Veteran and his surviving spouse have both died, the Board of Veterans' Appeals has no jurisdiction to adjudicate the merits of these claims. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from December 1942 to August 1945. The Veteran died in January 2018. As reflected by VA Form 8 Certification of Appeal dated July 2019, at the time of his death the Veteran had claims for an increase of entitlement for bilateral pes planus, cold injury residuals of left foot (previously evaluated as bilateral trench foot), cold injury residuals of right foot (previously evaluated as bilateral trench foot), and hearing loss; entitlement to specially adapted housing, automobile or other conveyance and adaptive equipment or for adaptive equipment only, special home adaptation grant, individual unemployability, and special monthly compensation based on aid and attendance/housebound; and service connection for nervous condition (claimed as mental health conditions), acid reflux (also claimed as GERD and digestion condition), diabetes mellitus, heart condition, high blood pressure, left upper extremity condition, left upper extremity condition, sleep apnea (also claimed as sleep conditions), and a vision condition pending before the Board of Veterans' Appeals (Board). When a Veteran dies, an eligible person may be substituted for the Veteran to process any pending claims. See 38 U.S.C. § 5121A. A person eligible for substitution includes a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C. § 5121(a). If a claimant dies while a claim for any benefit under a law administered by VA, or an appeal of a decision with respect to a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C. § 5121(a) may, not later than one year after the date of the death of the claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. Here, the appellant's March 2018 VA 21-0847 Request for Substitution of Claimant Upon Death of Claimant and VA 21-534 Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child reflects that she was the Veteran's surviving spouse. A VA memo dated March 2019 reflects that the appellant was qualified as a properly substituted claimant. In October 2021, VA was noticed that the appellant died in August 2021. VA records and the appellant's January 2018 VA 21-534 reflect that there are no further beneficiaries who meet the standard of 38 C.F.R. § 3.1000(d) for substitution purposes, though a letter was sent to her estate with more information as to the claims that were pending at the Veteran's and now appellant's death. 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). The appellant, the late Veteran's spouse, died during the pendency of the appeal. Therefore, her appeal has been rendered moot by virtue of her death, and it must be dismissed for lack of jurisdiction. See 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 to any derivative claim brought by any other survivor of the Veteran. See 38 C.F.R. § 20.1106. In particular this dismissal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the instant claims to completion. Any such request must be filed not later than one year after the date of the appellant's death. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b). 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...." see 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a). 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 Regional Office. Id. To file a request for substitution, please 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...." See 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 MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.