Citation Nr: 21068913
Decision Date: 11/15/21	Archive Date: 11/15/21

DOCKET NO. 16-43 854
DATE: November 15, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

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

CONCLUSION OF LAW

Due to the death of the appellant, 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 appellant had active duty service from January 1954 to January 1958. 

In February 2018, the appellant testified before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the hearing is of record. In a September 2021 letter, the appellant was notified that the VLJ who conducted the Board hearing was no longer employed by the Board and that the appellant had the right to another Board hearing. In October 2021, a response was received stating that the appellant did not wish to appear at another hearing.

In April 2018, the Board denied the Veteran's appeal. A March 2019 Court of Appeals for Veterans Claims (Court) order vacated the Board's decision, and adopted a Joint Motion for Remand (JMR) for reconsideration of the appellant's claim.

In August 2019 and October 2020, the Board remanded the appeal for additional development. It has since been returned to the Board for further consideration.

Unfortunately, the appellant died during the pendency of this appeal, which was entitlement to compensation under 38 U.S.C. § 1151 for the residuals of a left knee arthroplasty. 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

 

 

Emily Tamlyn

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Miller, 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.