Citation Nr: 22014352
Decision Date: 03/12/22	Archive Date: 03/12/22

DOCKET NO. 17-06 983
DATE: March 12, 2022

ORDER

The appeal is dismissed. 

FINDING OF FACT

During the pendency of the appeal, VA was notified that the Veteran died in March 2020. 

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claims on appeal at this time. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In January 2019, the Veteran perfected an appeal that included the issues of entitlement to service connection for bilateral hearing loss and tinnitus, as well as entitlement to an earlier effective date for the grant of service connection for lumbar strain, radiculopathy affecting the right and left lower extremities, right and left knee sprain, right and left ankle sprain, and right and left foot pain. 

In June 2017, the Veteran also perfected an appeal that included the issues of entitlement to an increased rating for service-connected lumbar strain, right lower extremity radiculopathy, and left lower extremity radiculopathy. 

Unfortunately, the Veteran died during the pendency of the appeal. As a matter of law, appellants' claims do not survive their deaths. Therefore, both appeals that were pending at the time of his death 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 receive accrued benefits to which a payee was entitled at his or her death based on evidence in the file at the date of death, and due and unpaid.  38 U.S.C. § 5121; 38 C.F.R. § 3.1000; see also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996). To file a request for accrued benefits, you may use VA Form 21-4182, "Application for Dependency and Indemnity Compensation or Death Pension (Including Accrued Benefits and Death Compensation Where Applicable) From the Department of Veterans Affairs," which may be found online here: https://vba.va.gov/bl/20/cio/20s5/forms/VBA-21-4182-ARE.pdf. 

There are also provisions in place to allow 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/?facility Type=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

 

 

M. Donohue

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Turnipseed, 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.