Citation Nr: 22013565
Decision Date: 03/09/22	Archive Date: 03/09/22

DOCKET NO. 17-34 320
DATE: March 9, 2022

ORDER

The appeal of entitlement to service connection for the cause of the Veteran's death is dismissed.

The appeal of entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 is dismissed.

The appeal of entitlement to accrued benefits at the time of the Veteran's death is dismissed.

The appeal of entitlement to survivor's pension benefits is dismissed.

FINDING OF FACT

In November 2021, while the appeal to the Board was pending, and prior to the issuance of a final decision, VA received notice that the appellant died on October [REDACTED], 2018.

CONCLUSION OF LAW

Due to the death of the appellant, 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 in the U.S. Army from April 1970 to January 1972.  These matters to the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA).

Unfortunately, the appellant, who was the surviving spouse of the Veteran, died during the pendency of the appeal.  As a matter of law, appellants' claims do not survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996).  This appeal on the merits has become moot by virtue of the death of the appellant and 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: 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 RO.  To find a VA RO 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 here: https://benefits.va.gov/BENEFITS/factsheets/general/Accrued.pdf.

 

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G.A. Ong, 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.