Citation Nr: 22014546
Decision Date: 03/14/22	Archive Date: 03/14/22

DOCKET NO. 17-10 329
DATE: March 14, 2022

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is dismissed.

Entitlement to a compensable rating for right lower extremity radiculopathy is dismissed.

Entitlement to a rating in excess of 20 percent for degenerative disc disease (previously diagnosed as low back syndrome) is dismissed.

FINDING OF FACT

The Veteran died on March [REDACTED], 2022.

CONCLUSION OF LAW

1. Because the Veteran has died, and there is no substituted appellant for this appeal, the Board has no jurisdiction to adjudicate the merits of the claim. 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 November 1971 to April 1975.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated December 2015 by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran had a virtual Board hearing before the undersigned Veterans Law Judge in October 2021. A transcript is of record.

1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. 

2. Entitlement to a compensable rating for right lower extremity radiculopathy. 

3. Entitlement to a rating in excess of 20 percent for degenerative disc disease (previously diagnosed as low back syndrome). 

Unfortunately, the appellant died during the pendency of the 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

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Alexander

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.