Citation Nr: 21076513
Decision Date: 12/27/21	Archive Date: 12/27/21

DOCKET NO. 14-29 691
DATE: December 27, 2021

ORDER

The appeal of entitlement to a rating in excess of 10 percent from May 21, 2012 and in excess of 40 percent from February 25, 2014 for right knee degenerative joint disease is dismissed.

FINDING OF FACT

On October 26, 2021, the Board of Veterans' Appeals (the Board) was notified that the appellant died on October [REDACTED], 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. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had continuous active naval service from October 1974 to April 1991.

This matter comes to the Board following a September 2012 rating decision in which the Agency of Original Jurisdiction (AOJ) confirmed and continued the Veteran's 10 percent evaluation for right knee degenerative joint disease. He was later granted a 40 percent rating in a May 2014 rating decision.  

The Veteran participated in a hearing with the undersigned Veterans Law Judge in September 2016. A transcript of this hearing is of record. The appeal was most recently before the Board in December 2020 when it was remanded for a new VA examination. 

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 Veteran's death 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.

The Board's dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the Veteran for purposes of processing the claim to completion. A request to be substituted must be filed within one year of the Veteran's death. 38 U.S.C. § 5121A; 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 to 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	R.M. Sachs, 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.