Citation Nr: 21075150 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 14-32 814 DATE: December 17, 2021 ORDER The appellant's appeal for entitlement to service connection for bilateral hearing loss is dismissed. The appellant's appeal for entitlement to service connection for tinnitus is dismissed. FINDINGS OF FACT 1. The Veteran died in January 2021, and had pending claims on appeal at the time of his death. 2. In a July 2013 decision, the appellant, who is the adult daughter of the Veteran, was improperly substituted as the substitute claimant. 3. The appellant who is over the age of 23 lacks standing as a substitute claimant to pursue the Veteran's pending claims on appeal, including for purposes of accrued benefits. CONCLUSION OF LAW The Board may not exercise jurisdiction over this appeal. 38 U.S.C. §§ 101, 5121, 7105 (2012); 38 C.F.R. §§ 3.57, 3.1000, 20.201 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1966 to April 1970. He died in January 2021. The appellant is the Veteran's adult daughter. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied the claims for service connection for bilateral hearing loss and tinnitus. The case was remanded by the Board in October 2019. The issues of entitlement to service connection for bilateral hearing loss and tinnitus were pending on appeal at the time of the Veteran's death in January 2021. In March 2021, the Board dismissed the claims without prejudice as it had no jurisdiction to adjudicate the merits of the appeal based on the Veteran's death. In June 2021, the appellant filed a request to substitute as a claimant in the Veteran's appeal. In July 2021 correspondence, the RO recognized the appellant as a substitute claimant for the issues in this decision. Thus, pending claims of entitlement to service connection for bilateral hearing loss and tinnitus have been reinstated on the docket for readjudication on the merits. "Standing" is the right to initiate a legal action. While the matter of the appellant's standing has not previously been raised during this appeal, standing is a jurisdictional requirement and cannot be waived. Here, the Board finds that the question of whether the appellant has standing to pursue this appeal has been raised by the record and must be addressed as an initial matter. In a July 2021 letter, the Board notified the appellant that the issue of whether she has standing to pursue this appeal had been raised and the appellant was informed of both the relevant laws and the evidence that was needed to determine if she has standing. To date, the appellant has not responded to this letter or submitted new evidence. Whether recognition of the appellant as the substitute claimant to pursue the Veteran's pending claims for service connection for bilateral hearing loss and tinnitus is valid. As noted above, the appellant was recognized by the RO as substitute claimant in this matter in a July 2021 decision. However, the issues of whether the appellant is a proper substitute claimant and has standing to pursue this appeal had been raised by the record. See July 20, 2021 BVA Letter. Accrued benefits are defined as due and unpaid periodic monetary benefits to which a payee was entitled at his or her death under existing ratings or decisions or based on evidence in the file at date of death. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). Thus, for an award of accrued benefits there must have been periodic monetary benefits due to the beneficiary at the time of his or her death. Here, the Veteran had pending appeals for entitlement to service connection pending at the time of his death which originated from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). See Form 8, dated August 21, 2020; Board decision, dated March 15, 2021. Upon the death of a veteran, any accrued and unpaid benefits are payable to the living person first listed as follows: (A) the veteran's spouse; (B) the veteran's children (in equal shares); (C) the veteran's dependent parents (in equal shares). 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(1). Upon the death of a surviving spouse or remarried surviving spouse, any accrued and unpaid benefits are payable to the Veteran's children. 38 C.F.R. § 3.1000(a)(2). Upon the death of a child, any accrued and unpaid benefits are payable to the surviving children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation. 38 C.F.R. § 3.1000(a)(3). Upon the death of a child claiming benefits under 38 C.F.R., chapter 18, any accrued and unpaid benefits are payable to the surviving parents. 38 C.F.R. § 3.1000(a)(4). In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 C.F.R. § 3.1000(a)(5). The term "child" is defined, in pertinent part, as a person who is unmarried and (1) under the age of 18; or (2) became permanently incapable of self-support before the age of 18; or (3) under the age of 23 and pursuing a course of instruction at an approved educational institution. See 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.1000(d)(2); Burris v. Principi, 15 Vet. App. 348, 352-53 (2001); Nolan v. Nicholson, 20 Vet. App. 340 (2006). An application for accrued benefits must be filed within 1 year after the date of death. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). A timely application for accrued benefits is deemed to include a request to substitute if an appeal in a claim for periodic monetary benefits was pending before the Agency of Original Jurisdiction (AOJ) when the claimant died. 38 C.F.R. § 3.1010(c)(2). A person eligible for substitution is defined as "a living person who would be eligible to receive accrued benefits due to the claimant . . .." 38 U.S.C. § 5121A. With respect to the claim of any claimant who dies on or after October 10, 2008, a person eligible for accrued benefits under 38 C.F.R. § 3.1000(a), as listed in 38 C.F.R. § 3.1000(a)(1) through (5), may, in priority order, request to substitute for the deceased claimant in a claim for periodic monetary benefits under laws administered by the Secretary, or an appeal of a decision with respect to such a claim, that was pending before the agency of original jurisdiction or Board when the claimant died. 38 C.F.R. § 3.1010(a). Upon VA's grant of a request to substitute, the substitute may continue the claim or appeal on behalf of the deceased claimant for purposes of processing the claim or appeal to completion. Id. A person filing a request to substitute must provide evidence of eligibility to substitute. 38 C.F.R. § 3.1010(d). If a substitute dies while a claim or appeal is pending, another member of the same joint class or a member of the next preferred subordinate category listed in § 3.1000(a)(1) through (5) may substitute for the deceased substitute, but only if the person requesting the successive substation files a request to substitute no later than one year after the date of the substitute's death. 38 C.F.R. § 3.1010(g)(5). In this case, the evidence reflects that the appellant is the Veteran's biological daughter and over the age of 23. See, e.g., October [REDACTED], 1971 Birth Certificate - VBMS entry dated January 21, 1975. The appellant has not contended, and the evidence does not indicate, that she became permanently incapable of self-support before the age of 18. For these reasons, she is not the Veteran's "child" for VA purposes. See 38 C.F.R. §§ 3.57, 3.1000(d)(2). Therefore, the appellant is not eligible to be recognized as substitute claimant on the basis of her relationship with the Veteran. However, recognition as substitute claimant may also be based on a finding that the person seeking recognition as substitute claimant bore the expenses of the last sickness and burial. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). Consideration of the claim under this provision could result in the recognition of the appellant as the substitute claimant as it is not dependent upon the appellant's relationship with the Veteran. (Continued on the next page) Here, in the July 2021 letter, the appellant was informed that the invoice she submitted for burial expenses reflects that payments to the funeral home were made by checks from the Veteran's estate, indicating that the estate and trust of the Veteran paid the expenses of burial. To date, the appellant has not stated that she bore any expenses of the Veteran's last sickness and burial, and has not submitted any evidence that she paid for such expenses. Therefore, there is no evidence that supports a finding that the appellant bore the expenses of the Veteran's last sickness and burial. For these reasons, the appellant is not eligible to receive accrued benefits to reimburse her for any such expenses and is not eligible to be recognized as substitute claimant. As the appellant is not a properly substituted claimant, she does not have standing to continue the Veteran's appeal of the July 2012 rating decision. Therefore, the present appeal of the issues of entitlement to service connection for bilateral hearing loss and tinnitus are dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Beach, 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.