Citation Nr: 21074412
Decision Date: 12/15/21	Archive Date: 12/15/21

DOCKET NO. 17-58 177
DATE: December 15, 2021

ORDER

Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to September 26, 2017, and a rating in excess of 70 percent thereafter is dismissed. 

Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD), L5 with thoracolumbar scoliosis is dismissed.

Entitlement to an effective date prior to May 29, 2012 for the grant of service connection for PTSD is dismissed. 

Entitlement to an effective date prior to May 29, 2012 for the grant of service connection for DJD, L5 with thoracolumbar scoliosis is dismissed.

FINDING OF FACT

On September 27, 2021, which was prior to the promulgation of a decision on the appeal, the Board was notified that the Appellant died in September 2021. 

 

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal at this time. See 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served honorably in the Army from October 1966 to July 1969. He died in September 2021. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for PTSD with a 50 percent rating effective May 29, 2021 and granted service connection for DJD, L5 with thoracolumbar scoliosis with a 10 percent rating effective May 29, 2012. 

In an October 2017 rating decision, the RO increased the rating for PTSD from 50 percent to 70 percent effective September 26, 2017. 

Unfortunately, the appellant died during the pendency of the appeal. As a matter of law, appellants' claims do not survive their deaths. Therefore, this appeal must be dismissed for lack of jurisdiction. See 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. See 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 ...." See 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

 

 

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Smith, 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.