Citation Nr: 21071930
Decision Date: 12/01/21	Archive Date: 12/01/21

DOCKET NO. 19-34 795
DATE: December 1, 2021

ORDER

Entitlement to service connection for a low back condition is dismissed.

Entitlement to service connection for congestive heart failure, to include as secondary to medication for a low back condition, is dismissed.

FINDING OF FACT

On November 5, 2021, VA was notified that the Veteran had died in July 2021. 

CONCLUSION OF LAW

The Board has no jurisdiction to adjudicate the merits of the claims of entitlement to service connection for a low back condition and congestive heart failure at this time. 38 U.S.C. § 7104; 38 C.F.R. § 20.1302. 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1978 until June 1981.

These matters come to the Board of Veterans' Affairs (Board) on appeal from an October 2018 Department of Veterans' Affairs (VA) regional office (RO) rating decision. 

The Veteran timely appealed this legacy rating decision.  However, before the Board could issue a decision on these claims, the Veteran passed away in July 2021. 

1. Entitlement to service connection for a low back disability

2. Entitlement to service connection for congestive heart failure

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 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330 (1997). This appeal has become moot by virtue of the Veteran's death and must be dismissed for lack of jurisdiction. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. 

In reaching this determination, the Board intimates no opinion as to the merits of any claim on appeal or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106.

There are, however, provisions in place to allow for an eligible person to take the Veteran's place in this 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

An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the VA office from which the claim originated. 38 C.F.R. § 3.1010(b).   

 

 

Caroline B. Fleming

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Finelli, 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.