Citation Nr: 21068111
Decision Date: 11/09/21	Archive Date: 11/09/21

DOCKET NO. 15-46 636
DATE: November 9, 2021

ORDER

The appeal is dismissed.

 

FINDING OF FACT

In November 2021, the Board was notified that the Veteran died in October 2021.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C. § 7104; 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from April 1976 to April 1979.

The case is on appeal from an April 2014 rating decision.

In April 2019, the Board granted service connection for bilateral hammertoes with tyloma formation, and remanded claims of service connection for a bilateral hip condition, bilateral knee condition, and a back condition for additional development.  

1. Service connection for a bilateral hip condition. 

2. Service connection for a bilateral knee condition.  

3. Service connection for a back condition.  

Unfortunately, the Veteran died during the pendency of this appeal.  In November 2021, prior to a Board decision on the matter, a Social Security Administration database record was associated with the claims file that shows the Veteran passed away in October 2021.  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).  Therefore, this appeal 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 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

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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

 

 

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Gray, 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.