Citation Nr: 21070038
Decision Date: 11/22/21	Archive Date: 11/22/21

DOCKET NO. 16-12 445A
DATE: November 22, 2021

ORDER

Entitlement to special monthly compensation (SMC) based on the regular need for the aid and attendance of another is dismissed.

FINDING OF FACT

In November 2021, the Board was notified by the Veteran's representative 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 the claim 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 January 1966 to December 1967. 

In September 2020, the Board denied the Veteran's claim for entitlement to SMC based on the regular need for the aid and attendance of another.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in September 2021, the Veteran's representative and a representative of VA's Office of General Counsel filed a Joint Motion for Partial Remand (JMPR). In the JMPR, the parties indicated that a remand was necessary because the Board erred by not providing an adequate statement of reasons or bases for its decision.  In an October 2021 Order, the Court vacated the portion of the Board's September 2020 decision that denied entitlement to SMC based on the regular need for the aid and attendance of another and remanded the matter for readjudication in light of the JMPR.  

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 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/?facility Type=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. 

 

 

Jenna Brant

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Morrad, 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.