Citation Nr: 21075745
Decision Date: 12/21/21	Archive Date: 12/21/21

DOCKET NO. 16-54 005
DATE: December 21, 2021

ORDER

The appeal of entitlement to service connection for cause of death is dismissed.

FINDING OF FACT

On December 8, 2021, which was prior to the promulgation of a decision on appeal, the Board was notified that the Appellant died in September 2017.

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. 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 from April 1955 to May 1975. The Veteran died in December 2015. The Appellant was the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a July 2016 rating decision which denied entitlement to service connection for cause of death.

In August 2016, the Appellant submitted her notice of disagreement (NOD) to appeal the issue of entitlement to service connection for cause of death. In her October 2016 VA Form 9 substantive appeal, the Appellant requested a Board hearing with a Veterans Law Judge (VLJ) at a local VA office. 

Unfortunately, the Appellant died during the pendency of this 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 on the merits has become moot by virtue of the death of the Appellant 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 this appeal or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106.

Although the Board has dismissed this appeal, there are provisions in place to allow for an eligible person to take the Appellant's place in her 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 Appellant's death. 38 C.F.R. § 3.1010(f)(5). 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

 

 

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Fairlie, 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.