Citation Nr: 21069146
Decision Date: 11/17/21	Archive Date: 11/17/21

DOCKET NO. 18-09 036
DATE: November 17, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

In November 2021, the Board of Veterans' Appeals (Board) was notified that the appellant died in June 2021, which was confirmed by her death certificate and the Social Security Administration (SSA).

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 Veteran served on active duty from November 1958 to August 1963. He died in July 2016 and the appellant was his surviving spouse. This matter comes to the Board on appeal from a February 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. 

1. Entitlement to service connection for cause of death.

2. Entitlement to dependency and indemnity compensation pursuant to 38 U.S.C. § 1318.

Unfortunately, the appellant died during the pendency of the appeal.  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 appellant's place in her 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 appellant'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

In the instant case, the Board acknowledges that the appellant's daughter filed a Request for Substitution of Claimant Upon Death of Claimant (VA Form 21P-0847). However, there is no indication that the Agency of Original Jurisdiction (AOJ) has made a determination regarding her request for substitution. In this regard, the AOJ must provide written notification of its decision to either grant or deny a request for substitution to the person who filed the request, together with notice in accordance with 38 C.F.R. § 3.103(b)(1) in the first instance, including any request to substitute in an appeal that is pending before the Board. 38 C.F.R. § 3.1010(e). Accordingly, the Board cannot adjudicate the appellant's daughter's request for substitution in the first instance. Consequently, the appellant's appeal must be dismissed and her daughter's request for substitution is referred to the AOJ for appropriate action.  

 

A. JAEGER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Waite

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.