Citation Nr: 21031673 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-40 782A DATE: May 24, 2021 REMANDED Entitlement to an effective date prior to December 4, 2011 for the grant of service connection for coronary artery disease (CAD) with cardiomyopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1950 to May 1977. He died in August 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that reconsidered a March 2014 rating decision. The Veteran's then surviving spouse was properly substituted as the appellant; however, she died in November 2018. The Board acknowledges the representative's request, dated in November 2020, that the case to be held open for a period of 90 days. The 90-day period has since elapsed, and no additional evidence or argument has been received. See Third Party Correspondence (November 2020). The procedural history of this appeal reveals that in December 2012, the Veteran submitted a claim for service connection for a heart disability. In August 2013, the Veteran died. In December 2013, the Veteran's surviving spouse, the then-appellant, submitted VA Form 21-534EZ, Application for Dependency and Indemnity, Death Pension, and/or Accrued Benefits. A March 2014 rating decision found that a claim was pending at the time of the Veteran's death and the claim for accrued benefits was filed within one year after death. The rating decision then granted entitlement to accrued benefits based on the Veteran's claim for service connection for CAD with cardiomyopathy, effective December 4, 2012. A January 2015 rating decision subsequently denied the then-appellant entitlement to retroactive benefits pursuant to Nehmer v. Department of Veterans Affairs. In June 2015, the then-appellant submitted a notice of disagreement, and a December 2015 rating decision found a clear and unmistakable error and granted an effective date of December 4, 2011, for the claim of entitlement to service connection for CAD with cardiomyopathy. The AOJ subsequently issued a July 2016 statement of the case that continued denial of the claim. A March 2018 Board decision denied the then-appellant's claim for entitlement to an effective date prior to December 4, 2011, for the grant of service connection for CAD with cardiomyopathy, for purposes of accrued benefits. The then-appellant appealed to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Remand (Joint Motion or JMR) and, in an August 2020 Court Order, the Court granted the Joint Motion, vacating the Board's March 2018 decision and remanding the matter for compliance with the Joint Motion. As noted, the Veteran's surviving spouse, the then-appellant, died in November 2018. See Notification Letter (January 2019). The August 2020 JMR lists the Veteran's child as the appellant; however, a review of the entire claims file reveals that the AOJ has yet to issue a decision related to a request for substitution. 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). The appeal on the merits then becomes moot by virtue of the death of the appellant and is dismissed for lack of jurisdiction. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. All determinations regarding a request to substitute must be made in the first instance by the AOJ, subject to the provisions of 38 C.F.R. § 20.1302. See 38 C.F.R. § 3.1010(b), (c)(1), (e). The AOJ's decision in this regard is appealable. 38 C.F.R. § 3.1010(e)(2). In this case, substitution has not been adjudicated by the AOJ, as is required by 38 C.F.R. § 3.1010(e). The Court has held that VA must comply with its own procedures related to applications for substituted claims. See Reliford v. McDonald, 27 Vet. App. 297 (2015) (holding that the Board erred by failing to provide the claimant with the opportunity to waive substitution and prejudiced her by failing to adjudicate her accrued benefits claim against the proper factual background). Here, as discussed previously, this appeal was the subject of an August 2020 Joint Motion for Remand, with the Veteran's son listed as the Appellant. The Board is bound by the findings contained in the JMR by the Court. See Chisem v. Gober, 10 Vet. App. 526, 527-28 (1997). Therefore, rather than dismissing the case due to death of the previously substituted appellant, the Board finds that a remand is required for a determination as to whether the Veteran's son, M.S., is recognized as a proper substitute for the claim of entitlement to an effective date prior to December 4, 2011 for the grant of service connection for CAD with cardiomyopathy. The matter is REMANDED for the following actions: 1. Send the Veteran's son, M.S. (the appellant as listed on this Board decision and the August 2020 JMR) a notice letter that explains substitution pursuant to 38 C.F.R. § 3.1010 and undertake any reasonably indicated development. 2. Thereafter, adjudicate whether M.S. is eligible for substitution in this appeal; send M.S. appropriate notice with respect to his status as a substituted party, or lack thereof. 3. If M.S. is deemed to be a proper substitute for continuing this appeal, then readjudicate the claim after allowing an appropriate time to submit evidence in support of his contentions. 4. If the benefit sought remains denied, issue a supplemental statement of the case, and return the case to the Board. L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.