Citation Nr: A25035127
Decision Date: 04/16/25	Archive Date: 04/16/25

DOCKET NO. 210525-176031
DATE: April 16, 2025

ORDER

The appeal entitlement to a waiver of recovery of Department of Veterans Affairs (VA) pension benefits in the amount of $67, 022.63 is dismissed.

FINDING OF FACT

On October 25, 2021, the Board was notified that the appellant died in October 2021.

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 from October 1969 to May 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2021 rating decision of the VA Committee on Waivers and Compromises (COWC).

In the May 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket in which he acknowledged that his appeal will be based upon all evidence submitted to VA as of 90 days after the date of that election.

Unfortunately, the Veteran died during the pendency of this 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.

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.

The Board's dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion. Such request must be filed not later than one year after the date of the appellant's death. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010 (b). 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). An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the VA office from which the claim originated. 38 C.F.R. § 3.1010 (b).

Notably, in December 2021, VA received an application for dependency and indemnity compensation (DIC) benefits. In December 2021, the AOJ granted DIC under 38 U.S.C. § 1318 and basic eligibility to Dependents' Educational Assistance (DEA).

In lieu of a specific request for substitution, a claim for accrued benefits, survivors' pension, or DIC benefits by an eligible person is deemed to include a request to substitute if a claim for periodic monetary benefits, or an appeal of a decision with respect to such claim, was pending before the AOJ or the Board when the Veteran died. 38 C.F.R. § 3.1010. However, a determination has not yet been made by the AOJ as to whether the appellant's spouse can be recognized as a substitute.

Therefore, until substitution has been accomplished, the Board cannot take any further action on the pending appeal. 

If the request for substitution is granted, this dismissed appeal will resume its place on the Board's docket. 38 C.F.R. §20.1302 (a). 

 

R. Bisignani

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	James A. DeFrank

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.