Citation Nr: 21076897
Decision Date: 12/28/21	Archive Date: 12/28/21

DOCKET NO. 17-37 675
DATE: December 28, 2021

ORDER

The appeal of entitlement to service connection for right foot injury and brain concussion, as well as to a compensable rating for left eardrum status post rupture and in excess of 60 percent for bilateral hearing loss, is dismissed. 

FINDING OF FACT

On September 27, 2021, the Board of Veterans' Appeals (the Board) was notified that the Appellant died on August [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 active service in the United States Marine Corps from February 1949 to February 1953. The Veteran died in March 2018.  The Appellant, his surviving spouse, was granted substitution in September 2018.

This matter comes to the Board following a March 2016 rating decision in which the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for right foot injury and brain concussion, granted entitlement to service connection for left eardrum status post rupture and assigned a noncompensable rating effective December 5, 2015, and continued the 60 percent evaluation for the Veteran's service-connected bilateral hearing loss. The AOJ also continued the 10 percent evaluation for the Veteran's service-connected tinnitus; however, as the Veteran did not appeal the rating for tinnitus on his July 2017 VA Form 9, this issue is not before the Board.

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 Appellant'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 another 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 Appellant for purposes of processing the claim to completion. Following the death of a substitute, another person may request to be substituted for the deceased substitute, but only if he or she files a request no later than one year after the date of the substitute's death (not the claimant's death). 38 C.F.R. § 3.1010(g)(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	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.