Citation Nr: A21019209
Decision Date: 12/02/21	Archive Date: 12/02/21

DOCKET NO. 200930-199291
DATE: December 2, 2021

ORDER

The appeal as to the issues of whether the removal of the Veteran's former fiduciary, VILA, and the appointment of the current fiduciary, S.T.R., to manage his Department of Veterans Affairs (VA) benefits were proper, is dismissed.

FINDING OF FACT

On June 1, 2021, the Board of Veterans' Appeals (Board) was first notified that the Veteran died in May 2021, during the pendency of the appeal.

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 from June 1985 to April 1988.

This case is on appeal to the Board from a March 2020 memorandum indicating that an action to replace VILA as the Veteran's fiduciary was to be initiated and completed. In September 2020, the Veteran filed a VA Form 10182 Notice of Disagreement, selecting Direct Review and noting that he did not agree with the March 2020 decision and that he wanted to keep his currently assigned fiduciary.

Unfortunately, the Veteran died during the pendency of this appeal. On June 1, 2021, VA was first notified of the Veteran's death. In a June 3, 2021 Report of First Notice of Death, from the Veteran's fiduciary, it shows that the Veteran died on May [REDACTED], 2021. On June 8, 2021, VA received notice that the Veteran's date of death was May [REDACTED], 2021 death according to records obtained from the Social Security Administration (SSA). In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted as proof of death. 38 C.F.R. § 3.211 (g).

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

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.

 

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Labi, 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.