Citation Nr: 21068798
Decision Date: 11/12/21	Archive Date: 11/12/21

DOCKET NO. 20-09 665
DATE: November 12, 2021

ORDER

The appeal with respect to entitlement to service connection for migraine headaches is dismissed.

The appeal with respect to whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss is dismissed.

The appeal with respect to whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for tinnitus is dismissed.

The appeal with respect to entitlement to service connection for an ear infection is dismissed.

The appeal with respect to entitlement to service connection for a sinus disability is dismissed.

The appeal with respect to entitlement to service connection for a bilateral eye disability is dismissed.

The appeal with respect to entitlement to service connection for a left shoulder disability is dismissed.

The appeal with respect to entitlement to service connection for a right knee disability is dismissed.

The appeal with respect to entitlement to an effective date earlier than December 29, 2017 for the award of basic eligibility for Dependents' Educational Assistance under Title 38, United States Code, Chapter 35, is dismissed.

The appeal with respect to entitlement to a total disability rating based on individual unemployability due to service-connected disability is dismissed.

FINDING OF FACT

The Veteran died in October 2021, while the current appeal was pending.

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(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 March 2009 to April 2010, to include service in Iraq.  He also served in the Army National Guard, to include a period of active duty for training from April 2007 to January 2008.

These matters come to the Board of Veterans' Appeals (Board) on appeal from September 2017 and October 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office.

 

Dismissal

Unfortunately, the Veteran, who was the appellant in this case, died during the pendency of this appeal in October 2021.  As a matter of law, appellants' claims do not survive their deaths.  Therefore, this appeal must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

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

 

 

DAVID A. BRENNINGMEYER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	John Kitlas, 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.