Citation Nr: A24085259
Decision Date: 12/19/24	Archive Date: 12/19/24

DOCKET NO. 231205-397682
DATE: December 19, 2024

ORDER

The appeal as to the propriety of the rating reduction for service-connected degenerative arthritis of the thoracolumbar spine is dismissed.

FINDING OF FACT

In June 2024, the Veteran died while this appeal was pending before the Board.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of his appeal at this time.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2023).  

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the United States Army from September 1979 to September 1982.  His appeal stems from an October 2023 rating decision in which the Agency of Original Jurisdiction (AOJ) reduced the rating of his service-connected degenerative arthritis of the thoracolumbar spine from 40 percent to 20 percent, effective as of July 12, 2023.

The Veteran appealed to the Board via a December 2023 Form 10182 in accordance with the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), challenging the propriety of the AOJ's rating reduction.  In doing so, he requested review on the Hearing Review Docket, under which he would be afforded a hearing on his claim before a Veterans Law Judge and the Board would consider his appeal based on the evidence of record at the time of the October 2023 rating decision, as well as the evidence submitted at or within 90 days of his hearing before the Board.  38 C.F.R. §§ 20.202, 20.302.  

However, the Veteran died during the pendency of his appeal before the Board could afford him a hearing or issue a decision on his claim.  As a matter of law, appellants' claims do not survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996).  The appeal on the merits has become moot by virtue of the death of the Veteran and is therefore dismissed for lack of jurisdiction.  

The Board's dismissal does not affect the right of an eligible person to take the Veteran's place to continue the appeal on the pending claim.  This process, known as substitution, must be requested within one year of the Veteran's death.  38 C.F.R. § 3.1010(a), (b).  Individuals who may be eligible for substitution include the Veteran's surviving spouse, dependent children, dependent parents, and those who bore the expenses of the Veteran's last sickness or burial.  38 C.F.R. §§ 3.1000(a), 3.1010(a).

Here, no one has requested to substitute for the Veteran.  Any person who would like to request substitution must submit a VA Form 21P-0847, "Request for Substitution of Claimant Upon Death of Claimant."  The form and filing instructions are available online at https://www.va.gov/find-forms/.  If the AOJ receives a request for substitution within one year of the Veteran's death and then grants the request, this dismissed appeal will resume its place on the Board's docket.  38 C.F.R. § 20.1302(a).  

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In sum, the Veteran died in June 2024 and there is no indication that VA received a request for substitution.  Accordingly, the appeal is dismissed.

 

 

John R. Doolittle, II

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Spigelman

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.