Citation Nr: 21068292
Decision Date: 11/09/21	Archive Date: 11/09/21

DOCKET NO. 19-14 066
DATE: November 9, 2021

ORDER

The claim of entitlement to service connection for obstructive sleep apnea is dismissed.

FINDING OF FACT

On October 5, 2021, the Board of Veterans' Appeals (Board) received notification that the Veteran had died on September [REDACTED], 2021.

CONCLUSION OF LAW

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

REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant died during the pendency of the appeal. 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 without prejudice 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 appellant. 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.

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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.

 

 

C.A. SKOW

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Griffey, 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.