Citation Nr: 21067956
Decision Date: 11/08/21	Archive Date: 11/08/21

DOCKET NO. 18-40 689
DATE: November 8, 2021

ORDER

The appeal seeking entitlement to service connection for bilateral hearing loss is dismissed.

FINDING OF FACT

According to the Social Security Administration (SSA), the Veteran died in July 2021, before a decision by the Board was promulgated on appeal.   

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction at this time to adjudicate the merits of his appeal seeking entitlement to service connection for bilateral hearing loss.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

In November 2021, before it could consider the appeal, the Board received notification that the Veteran had died in July 2021; his death was confirmed by the SSA, a Federal agency.  In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted as proof of death.  38 C.F.R. § 3.211(g).  As there is no evidence to the contrary, the Board accepts the finding by the SSA as proof of the Veteran's death during the pendency of the appeal and before the Board promulgated a decision on the appeal seeking entitlement to service connection for bilateral hearing loss.    

As the Veteran died during the pendency of the appeal, as a matter of law his appeal seeking entitlement to service connection for bilateral hearing loss does not survive his death.  Thus, the appeal must be dismissed for lack of jurisdiction. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; 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).  

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

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.

 

 

George R. Senyk

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Debbie Breitbeil, 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.