Citation Nr: 21071487
Decision Date: 11/30/21	Archive Date: 11/30/21

DOCKET NO. 17-63 393
DATE: November 30, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

On August 17, 2020, the Board was notified that the Veteran died in January 2020.  

CONCLUSION OF LAW

Due to the death of the Veteran, 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 in the United States Army from December 1964 to September 1966.  The Board previously denied claims for a rating in excess of 20 percent for a low back disability and service connection for bilateral hearing loss in a September 2019 decision.  The Veteran timely appealed this decision to the Court of Appeals for Veterans Claims (Court).  

In July 2020, pursuant to a Joint Motion for Partial Remand, the Court vacated the abovementioned portions of the September 2019 decision and remanded the matter to the Board for readjudication.  In August 2020, however, the Court was notified of the death of the Veteran in January 2020.  In a June 2021 order, the Court revoked the July 2020 mandate and order, vacated the September 2019 decision, and dismissed the appeal for lack of jurisdiction.  

As set forth above, the Veteran unfortunately died during the pendency of the appeal.  As a matter of law, appellants' claims do not survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994).  This appeal on the merits has become moot by virtue of the death of the appellant.  As such, and in accordance with the Court's June 2021 dismissal, the Board must now dismiss the appeal 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.

 

 

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Rademacher, 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.