Citation Nr: 21073806
Decision Date: 12/10/21	Archive Date: 12/10/21

DOCKET NO. 19-37 291
DATE: December 10, 2021

ORDER

The appeal as to whether the substantive appeal submitted in June 2018 was timely is dismissed.

FINDINGS OF FACT

1. The Veteran died in October 2021.

2. The agency of original jurisdiction (AOJ) has not made an initial determination as to whether the Veteran's surviving spouse may be considered an eligible substitute in the Veteran's appeal.

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 FINDINGS AND CONCLUSION

In November 2020 the Board issued a decision finding the substantive appeal submitted in June 2018 was not timely.  The Veteran appealed that decision to the Court of Appeals of Veterans Claims (Court) and in August 2021, the Court set aside the Board's denial and remanded the issue for further development and readjudication pursuant to the terms of the joint motion remand.

Unfortunately, the Veteran 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

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

The Board notes that a VA Form 21P-534EZ, Application for Dependency and Indemnity Compensation (DIC), Death Pension, and/or Accrued Benefits, was filed by the surviving spouse in November 2021, less than a year after the death of the Veteran.  The November 2021 VA Form 21-534 is deemed to include a request for substitution.  See 38 C.F.R. § 3.1010 (c) (2).  The AOJ has not yet made a formal determination as to whether the Veteran's surviving spouse is an eligible substitute in this appeal.  See 38 C.F.R. § 3.1010 (e) (stating that the "the agency of original jurisdiction will decide in the first instance all requests to substitute, including any request to substitute in an appeal pending before the Board of Veterans' Appeals").

Recognizing that the current appeal was pending before the Board at the time of the surviving spouse's application, this appeal is dismissed without prejudice.  If the AOJ determines that the surviving spouse is eligible to substitute for the deceased Veteran, the appeal will be reactivated as appropriate and will assume its original place on the Board's docket.   

 

G. A. WASIK

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. A. Prinsen

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.