Citation Nr: 21071059
Decision Date: 11/29/21	Archive Date: 11/29/21

DOCKET NO. 10-47 065A
DATE: November 29, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

In May 2019, the Board was notified of the Appellant's death earlier in May 2019.

CONCLUSION OF LAW

Because of the Appellant's death, 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

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 allowing for an eligible person to take the Appellant's place in his appeal 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). That time has now expired. 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.

Prior to the expiration of time, the Appellant, in August 2019, requested to be substituted for the Veteran, and VA initially recognized him as a substitute for the Veteran on the premise that he was the Veteran's minor child (i.e., under the age of 18 or under the age of 23 if in school). See September 2020 VA correspondence. But, in October 2021, VA notified the Appellant that substitution was premature as the Appellant had not provided evidence that he was a minor child.  The Appellant was requested to submit his birth certificate within 30 days; that time period has now expired, and he has not submitted the requested document.  The Board also notes that, in 2008 and 2014, when filing claims for benefits, the Veteran indicated that he did not have any dependent children, and in 2019 a Probate Court granted the Appellant a Letter Testamentary as one of the Veteran's personal representatives. 

 

Thus, the record indicates the Appellant is not a "minor" child of the Veteran. Therefore, he is not a proper substitute, and the appeal is dismissed. 

 

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Wishard

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.