Citation Nr: 22010889
Decision Date: 02/24/22	Archive Date: 02/24/22

DOCKET NO. 17-11 116
DATE: February 24, 2022

ORDER

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

FINDING OF FACT

In February 2022, the Board was notified that the Veteran died in February 2022.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal for entitlement to service connection for a respiratory disability 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 in the U.S. Air Force from April 1969 to February 1973 and in the U.S. Army from November 1990 to July 1991.  The Veteran died in February 2022.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Veterans Law Judge at an August 2019 Central Office hearing.  A transcript of this hearing is of record.

The case was initially brought before the Board in November 2019, at which time the Board remanded the issue on appeal for further development.  The matter was subsequently returned to the Board.  In a December 2020 decision, the Board denied service connection for a respiratory disability.  The Veteran appealed the December 2020 decision to the U.S. Court of Appeals for Veterans Claims (Court).  In an August 2021 Order of the Court granting an August 2021 Joint Motion for Remand (JMR), the parties agreed to vacate the December 2020 Board decision and remand the matter for further development and readjudication.  The case was returned to the Board.  In December 2021, the Board remanded the issue on appeal for additional development.  The case was returned to the Board.  

Dismissal

Unfortunately, the appellant died during the pendency of this appeal.  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.

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Journet Shaw, 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.