Citation Nr: 21025357
Decision Date: 04/27/21	Archive Date: 04/27/21

DOCKET NO. 17-46 224
DATE: April 27, 2021

ORDER

The issue of whether VA was correct to adjust VA pension from the aid and attendance rate to the housebound rate effective from December 1, 2015 due to hospitalization at government expense is dismissed.

FINDING OF FACT

In April 2021, the Board received telephone contact notification from his fiduciary, (documented in a VA Form 27-0820a, Report of First Notice of Death), that the Veteran died in April 2021, which was confirmed by Social Security Administration Data received that same 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 served on active duty from June 1946 to October 1947.  The Board is thankful for the Veteran’s honorable service to our country.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2016 determination by a Department of Veterans Affairs (VA) Regional Office (RO), which reduced the Veteran’s VA pension from the aid and attendance rate to the housebound rate, effective from December 1, 2015, due to hospitalization at government expense.

As requested in the September 2017 VA Form 9, a Board hearing was scheduled for May 2020 and rescheduled for May 2021; unfortunately, the Veteran died prior to his rescheduled May 2021 hearing.

In April 2021, the Board received telephone contact notification, (documented in a VA Form 27-0820a, Report of First Notice of Death), that the Veteran died in April 2021, which was confirmed by Social Security Administration Data received that same month.  

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).  This appeal on the merits has become moot by virtue of the death of the Veteran 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 appellant for purposes of processing the claim to completion.  Such request must be filed not later than one year after the date of the appellant’s death.  38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b).  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).  An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the VA office from which the claim originated.  38 C.F.R. § 3.1010(b).

 

 

M. C. GRAHAM

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K Hughes

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.