Citation Nr: A21019241
Decision Date: 12/02/21	Archive Date: 12/02/21

DOCKET NO. 200831-117508
DATE: December 2, 2021

ORDER

The appeal of entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed.

FINDING OF FACT

In November 2021, the Board was notified that the Veteran died that month.

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 had active service from September 1972 to March 1975, from February 1979 to March 1982, from September 1984 to January 1987, and from September 1990 to June 1991.  This matter was most recently before the Board in January 2021, when the appeal was denied.  

On appeal, the U.S. Court of Appeals for Veterans Claims (Court) issued an August 2021 Order that vacated the Board's prior January 2021 decision, and remanded the matter to the Board.  The Court's Order granted a July 2021 Joint Motion for Remand (JMR) filed by both VA and the Appellant ("the Parties").

Unfortunately, the Veteran died during the pendency of this appeal.  The Veteran's attorney submitted a letter informing VA of his death in November 2021, and a death certificate is also of record.  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

 

 

C. CRAWFORD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Dean, 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.