Citation Nr: 21077171
Decision Date: 12/28/21	Archive Date: 12/28/21

DOCKET NO. 08-20 332
DATE: December 28, 2021

ORDER

The appeal for entitlement to service connection for a right ankle disability is dismissed.

The appeal for entitlement an effective date prior to June 18, 2017 for the grant of a 70 percent rating for adjustment disorder with depressed mood is dismissed.

FINDING OF FACT

In December 2021, notification from the Social Security Administration was associated with the record which documented that the appellant had died in November 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 appellant served on active duty from February 1985 to August 1990 and from January 1991 to February 1991.

These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2016 (right ankle) and August 2017 (adjustment disorder with depressed mood) rating decisions issued by a Regional Office (RO) the Department of Veterans Affairs (VA).

The issue of entitlement to service connection for a right ankle disability was remanded by the Board in June 2019 and November 2019.  It now returns for appellate review.  

In June 2021, the Veteran presented testimony a virtual hearing before the undersigned Veterans Law Judge as to the issues of entitlement to service connection for a right ankle disability and entitlement an effective date prior to June 18, 2017 for the grant of a 70 percent rating for adjustment disorder with depressed mood.  A transcript of this hearing is of record. 

Unfortunately, as reflected in a December 2021 notification from the Social Security Administration, the appellant died during the pendency of this appeal, specifically in November 2021.  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

 

 

M. C. GRAHAM

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Espinoza, 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.