Citation Nr: A25035263
Decision Date: 04/16/25	Archive Date: 04/16/25

DOCKET NO. 210819-179025
DATE: April 16, 2025

ORDER

Entitlement to an effective date earlier that January 23, 2020, for the grant of service connection for migraine headaches is dismissed.

FINDING OF FACT

In December 2024, the Board of Veterans' Appeals (Board) received notification that the Veteran had died in December 2024.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the claim of entitlement to an effective date earlier than January 23, 2020, for the grant of service connection for migraine headaches. 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 April 2002 to June 2006.

This matter comes before the Board on appeal from an October 2020 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), agency of original jurisdiction (AOJ). The rating decision on appeal constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the August 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket.

Unfortunately, the Veteran died during the pendency of the appeal. 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 have 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.

There are, however, provisions in place to allow for an eligible person to take the appellant'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 appellant'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.

Accordingly, this appeal is dismissed without prejudice.

 

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. McPhaull, 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.