Citation Nr: 22019533
Decision Date: 04/01/22	Archive Date: 04/01/22

DOCKET NO. 19-07 047
DATE: April 1, 2022

ORDER

The appeal for a compensable disability rating for service-connected bilateral hearing loss is dismissed.

FINDING OF FACT

On March 24, 2022, before the Board promulgated a decision in this appeal, the Board was notified that the appellant died in March 2022.

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to address 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 from January 1954 to October 1957.

This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to a compensable disability rating for service-connected bilateral hearing loss.

The Veteran's notice of disagreement (NOD) was received in October 2017. The RO issued the statement of the case (SOC) in February 2019, and the Veteran's VA Form 9, substantive appeal was received in March 2019.

In January 2021, the Veteran testified at a video conference hearing at the RO before a Veterans Law Judge (VLJ). A transcript of that testimony is of record. In March 2021, the Board remanded the case for further development and adjudication. 

On March 24, 2022, while the case was pending at the Board, VA received notice of the Veteran's March 23, 2022 death. A Social Security Administration Report of Death, also received in March 2022, corroborates the date of death. In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted as proof of death. 38 C.F.R. § 3.211(g).

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). This appeal on the merits has become moot by virtue of the death of the Veteran and must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106.

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. 

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. KAYS HUKILL

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.