Citation Nr: 21075892
Decision Date: 12/21/21	Archive Date: 12/21/21

DOCKET NO. 20-29 423
DATE: December 21, 2021

ORDER

The appeal as to the claim of entitlement to a disability rating of 100 percent for posttraumatic stress disorder (PTSD) with Alzheimer's disease, other specified depressive disorder and traumatic brain injury (TBI) for the period on appeal prior to November 27, 2019 is dismissed.

FINDING OF FACT

Before promulgating a decision on appeal, the Board was notified that the Veteran died in October 2021.

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 FINDING AND CONCLUSION

The Veteran served on active duty in the United States Marine Corps from June 1967 to March 1969.  During his period of service, he earned the Purple Heart with one star, National Defense Service Medal, Vietnam Service Medal with one star, Vietnam Campaign Medal with device, Good Conduct Medal, Rifle Sharpshooter Badge, and Navy Achievement Medal with Combat "V."

By a July 2020 rating decision, the RO increased the disability rating of the Veteran's acquired psychiatric disability to 100 percent, effective November 27, 2019.  Because the increased rating was not granted for the entire appellate period, the issue remains on appeal, as characterized on the title page.  See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded).

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.  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

 

 

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Tracy O. Joseph, 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.