Citation Nr: 21071771
Decision Date: 12/01/21	Archive Date: 12/01/21

DOCKET NO. 19-38 890
DATE: December 1, 2021

ORDER

The appeal with respect to entitlement to a rating in excess of 20 percent for intervertebral disc syndrome and degenerative arthritis of the cervical spine is dismissed.

FINDING OF FACT

The Veteran died in September 2021, while the present appeal was pending.

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 November 1990 to June 1991 and from September 2005 to November 2006, to include service in Kuwait and Iraq.  He also had service in the Army National Guard, to include a period of active duty for training from July 1987 to November 1987.  His decorations included the Army Commendation Medal, Army Achievement Medal, Army Reserve Components Achievement Medal, National Defense Service Medal, Southwest Asia Service Medal, and Combat Action Badge.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office.  

Dismissal

Unfortunately, the Veteran 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).  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/?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

 

 

DAVID A. BRENNINGMEYER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Ferguson, 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.