Citation Nr: 21070796
Decision Date: 11/26/21	Archive Date: 11/26/21

DOCKET NO. 20-19 184
DATE: November 26, 2021

ORDER

The appeal seeking a compensable rating for gastroesophageal reflux disease (GERD) (claimed as acid reflux) is dismissed.

The appeal seeking a compensable rating for degenerative disc disease (DDD) of the cervical spine is dismissed.

The appeal seeking a rating in excess of 10 percent for right patellofemoral pain syndrome (claimed as bilateral knee pain) is dismissed.

The appeal seeking a rating in excess of 10 percent for left patellofemoral pain syndrome (claimed as bilateral knee pain) is dismissed. 

The appeal seeking a rating in excess of 10 percent for right shoulder strain with residual pain (claimed as right shoulder condition) (dominant) is dismissed. 

The appeal seeking a rating in excess of 10 percent for residual pain, follow surgery for non-union of left scaphoid fracture to include smaller, weaker left forearm (also claimed as left hand disability) is dismissed.  

The appeal for a rating in excess of 20 percent degenerative disc disease (DDD) of the thoracic and lumbar spine is dismissed. 

The appeal for a rating in excess of 30 percent for dysthymic disorder to include insomnia (claimed as depression and sleep apnea) is dismissed.  

Entitlement to service connection for sleep apnea is dismissed.  

Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed.  

FINDING OF FACT

Prior to the promulgation of a Board decision on this appeal, the Board was notified that the appellant died in June 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 Veteran, who was the appellant in this case, served on active duty from March 2007 to November 2011.

This matter comes before the Board on appeal from the rating decision dated September 2017 of a Department of Veterans' Affairs (VA) Regional Office (RO).  While the claims were pending, VA was notified that the Veteran died in June 2021.

Unfortunately, the appellant died during the pendency of this 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

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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.

 

S. B. MAYS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Moldawer, 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.