Substitution in Case of Death of Claimant, 52977-52985 [2014-21139]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 79, Number 172 (Friday, September 5, 2014)]
[Rules and Regulations]
[Pages 52977-52985]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-21139]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 3, 14, and 20

RIN 2900-AN91


Substitution in Case of Death of Claimant

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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[[Page 52978]]

SUMMARY: This document adopts as a final rule the Department of 
Veterans Affairs' (VA) proposal to amend its regulations on 
adjudication of VA benefit claims, representation of claimants, and the 
Board of Veterans' Appeals rules of practice. Specifically, these 
amendments implement section 212 of the Veterans' Benefits Improvement 
Act of 2008, which allows an eligible survivor to substitute for a 
deceased claimant in the decedent's pending claim or appeal of a 
decision on a claim. This final rule addresses eligibility for 
substitution and the procedures applicable to requests to substitute in 
a claim that is pending before a VA agency of original jurisdiction or 
an appeal that is pending before the Board of Veterans' Appeals.

DATES: Effective Date: This final rule is effective October 6, 2014.

FOR FURTHER INFORMATION CONTACT: Ms. Damali Mason, Pension and 
Fiduciary Service (21PF), Veterans Benefits Administration, Department 
of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, 
(202) 632-8852. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Section 212 of the Veterans' Benefits 
Improvement Act of 2008, Public Law 110-389 (the Act), added section 
5121A to title 38, United States Code, which authorizes certain persons 
to substitute for a deceased claimant in a claim or appeal that is 
pending before VA. If a claimant dies while a claim for VA benefits or 
an appeal of a decision on a VA benefits claim is pending, section 
5121A permits a person who would be eligible for accrued benefits under 
38 U.S.C. 5121(a) to complete the decedent's claim or appeal. In a 
proposed rule published in the Federal Register on February 15, 2011, 
VA proposed to implement section 5121A by adding a new 38 CFR 3.1010 
regarding adjudication of substitution matters. 76 FR 8666, 8672, Feb. 
15, 2011. We also proposed to amend 38 CFR part 14 to address the 
representation of substitutes and 38 CFR part 20 to address 
substitution in appeals pending before the Board of Veterans' Appeals 
(Board). Id. at 8673.
    We provided a 60-day comment period for the proposed rule and 
invited interested persons to submit comments on or before April 18, 
2011. VA received no comments during the comment period. However, 
following the close of the comment period, an organization requested 
additional time to submit comments. On July 5, 2011, VA published 
notice that it would extend the comment period for the proposed rule 
for an additional 30 days to August 4, 2011. See 76 FR 39062, July 5, 
2011. During the extended comment period, VA received comments from one 
individual and four organizations.
    Several commenters characterized proposed Sec.  3.1010(c)(1), which 
would have required a request to substitute to include, at a minimum, 
the word ``substitute'' or ``substitution,'' as overly formalistic. We 
agree and have changed the provision. During our initial implementation 
of section 5121A, which was based upon the statutory provisions, we 
encountered situations where an eligible survivor who did not know the 
applicable substitution principles requested that VA continue the 
adjudication of a pending claim. In each situation, the survivor's 
request was sufficient to identify his or her intent to continue the 
prosecution of the pending claim or appeal. Accordingly, we modified 
Sec.  3.1010(c)(1) to instead require that a substitution request 
``indicate intent to substitute'' for a deceased claimant in a pending 
claim or appeal. This change should address the commenters' concerns 
and allow VA to identify substitution requests that require a decision.
    Several commenters complained that requiring a person who seeks to 
substitute in a claim or appeal to provide certain information, such as 
the decedent's VA claim number, is overly burdensome and contrary to 
VA's claimant-friendly system. We agree that requiring a survivor to 
provide the decedent's VA claim or appeal number might be burdensome to 
the extent that the survivor does not have the information and must 
request it from VA before submitting a substitution request.
    VA received over one million claims in each of the last five years. 
For this reason, VA requires basic identifying information to match a 
substitution request with a pending claim or appeal. We recognize that 
a deceased claimant's Social Security number may be more accessible to 
survivors than the decedent's VA claim or appeal number. Accordingly, 
we revised Sec.  3.1010(c)(1) to clarify that a person seeking 
substitution may provide the decedent's Social Security number in lieu 
of a claim or appeal number. We also revised Sec.  3.1010(c)(1) to 
replace the proposed phrase ``the applicable claim number or appeal 
number'' with the more specific phrase ``the deceased claimant's claim 
number, Social Security number, or appeal number.'' This change 
clarifies that it is the deceased claimant's claim, Social Security, or 
appeal number that is required. These changes make the regulation 
claimant-friendly while balancing VA's need to identify the pending 
claim or appeal in which the survivor seeks to substitute with the 
substitute's need for simple procedures.
    Several commenters recommended that, in light of the time elapsed 
between the effective date of section 5121A, October 10, 2008, and the 
promulgation of these regulations, VA consider timely any request to 
substitute for a claimant who died between October 10, 2008, and the 
effective date of this regulation if filed within one year after the 
effective date of the regulation. The commenters suggest this 
application of the rule is necessary to account for delays in 
completing the rulemaking proceeding. However, section 5121A(a)(1) 
itself authorizes substitution only if a substitute files a 
substitution request ``not later than one year after the date of the 
death of such claimant,'' and VA has been processing substitution 
requests in accordance with section 5121A since the effective date of 
the statute. Accordingly, we will not make any changes based upon these 
comments.
    Proposed Sec.  3.1010(g)(1) limited substitution to ``pending'' 
claims and appeals. Under proposed paragraph (g)(1)(i), a claim would 
not be pending for substitution purposes if VA decided the claim before 
the claimant died and the claimant died before filing a notice of 
disagreement (NOD). Several commenters suggested that proposed 
paragraph (g)(1)(i) would erroneously exclude claims that substitutes 
might wish to appeal to the Board. We interpret the comments as 
suggesting that VA authorize substitutes to appeal an agency of 
original jurisdiction decision on a claim if the claimant dies before 
he or she has an opportunity to file an NOD and the one-year NOD filing 
period has not expired. The commenters further asserted that limiting a 
substitute's right to appeal is inconsistent with the procedures for 
filing an NOD and for filing an appeal to the Court of Appeals for 
Veterans Claims (Veterans Court). We agree that Congress did not intend 
to restrict a substitute's ability to appeal a decision on the 
decedent's claim.
    Congress did not explicitly address NODs with respect to 
substitution in section 5121A. Nevertheless, it is clear that Congress 
intended that section 5121A would liberalize survivors' ability to 
continue claims for the purpose of processing them to completion. In 
the Joint Explanatory Statement on the predecessor bill, S. 3023, as 
amended, 154 Cong. Rec. S10445, S10447 (2008), the Conference Committee 
explained, ``with a claim or appeal pending adjudication at the time

[[Page 52979]]

of death, the surviving spouse or other beneficiary is unable to take 
up the claim where it is in the process and must refile the claim 
separately as if submitting a new claim.'' To remedy this, Congress 
allowed survivors ``to substitute for the deceased claimant rather than 
being forced to re-file and restart the claim or appeal.'' Id.
    After considering the comments and the general congressional intent 
that proceedings before VA ``should be as informal and nonadversarial 
as possible,'' Walters v. Nat'l. Ass'n. of Radiation Survivors, 473 
U.S. 305, 323 (1985), we revised Sec.  3.1010(g)(1) to allow a 
substitute to appeal a decision on a claim during the one-year 
substitution period prescribed in section 5121A(a)(1) if the decedent 
had an actionable right of appeal on the date of death.
    We revised Sec.  3.1010(g)(1)(i) to provide that, for purposes of 
substitution, a claim is also considered pending if, at the time of the 
claimant's death, the agency of original jurisdiction has decided the 
claim but the claimant has not filed an NOD and the 1-year period for 
filing an NOD has not expired. This revision will permit a substitute 
to file an NOD in the same manner as a live claimant. It is also 
consistent with the Veterans Court's decision in Taylor v. Nicholson, 
21 Vet. App. 126 (2007). In Taylor, the Veterans Court reversed a Board 
decision denying a survivor's claim for accrued benefits that was based 
on a finding that the deceased veteran's compensation claim was not 
pending on the date of his death. 21 Vet. App. at 128-29. The Veterans 
Court held that the veteran's compensation claim was pending on the 
date of his death because nearly 11 months remained in the period in 
which he could have filed an NOD. Id. For purposes of accrued benefits, 
the court determined that a claim remains pending until the period for 
filing a notice of disagreement has expired. Id. at 129. Although the 
Veterans Court decided Taylor before Congress enacted section 5121A, 
given the linkage between sections 5121 and 5121A, we have determined 
that it is reasonable to consistently prescribe when a claim is 
``pending'' for purposes of both substitution and accrued benefits.
    Additionally, in Breedlove v. Shinseki, 24 Vet. App. 7, 20 (2010), 
the Veterans Court held that, if requested, the Veterans Court will 
consider substitution requests in its pending cases. Therefore, in 
Sec.  3.1010(g)(1)(ii), we have revised the last sentence to clarify 
that substitution before VA is not available once the Board issues a 
final decision, but substitution for purposes of filing an appeal with 
the Veterans Court is not precluded. Our proposed statement could have 
been interpreted as prohibiting substitution in appeals to or pending 
before the Veterans Court, which would conflict with the Veterans 
Court's holding in Breedlove. 24 Vet. App. at 20. Furthermore, we do 
not have jurisdiction to regulate matters pending before the Veterans 
Court.
    One commenter suggested treating substitution requests in the same 
manner as motions for reconsideration of a Board decision, which toll 
the time available to appeal a Board decision to the Veterans Court if 
filed during the appeal period. However, the commenter's suggestion is 
beyond the scope of this rulemaking because VA cannot prescribe a 
method for tolling the appeal period in 38 U.S.C. 7266(a) in its 
regulations. See Breedlove, 24 Vet. App. at 13 (noting that VA's 
prescription as to how the Veterans Court is to allow and implement 
substitution would violate the separation of powers doctrine). The 
Veterans Court's case law, not VA regulations, established the rule 
that a timely motion for reconsideration tolls the appeal period. 
Therefore, VA cannot implement the commenter's suggestion.
    Proposed Sec.  3.1010(e) regarding decisions on substitution 
requests provided that the ``agency of original jurisdiction will 
decide in the first instance all requests to substitute, including any 
request to substitute in an appeal pending before the Board of 
Veterans' Appeals.'' Several commenters suggested that the Board should 
decide a substitution request if an appeal is pending before the Board 
at the time of a claimant's death. This suggestion apparently arose out 
of concern that requiring the agency of original jurisdiction where the 
appeal originated to decide a request to substitute would cause 
unnecessary delay and confuse eligible survivors, who may not know at 
which agency of original jurisdiction the appeal originated. One 
commenter recommended that a substitution request should be accepted at 
the agency of original jurisdiction, the Board, or the court having 
jurisdiction. We do not implement the commenters' suggestions or make 
any changes based upon the comments.
    As explained in the proposed rule, allowing the Board to decide a 
substitution request would deprive the survivor of the right to the 
``one review on appeal'' mandated by 38 U.S.C. 7104(a). 76 FR at 8667-
8668, Feb. 15, 2011. Under the rule as proposed, if the agency of 
original jurisdiction denies a substitution request, the requestor may 
appeal that denial to the Board. Although the commenters assert that a 
substitution request is not a ``claim,'' the right to appeal applies to 
``[a]ll questions in a matter which under [38 U.S.C.] 511(a) . . . is 
subject to decision by the Secretary.'' 38 U.S.C. 7104(a). Accordingly, 
absent authority from Congress, a request to substitute in a decedent's 
claim or appeal must be decided in the first instance by the VA agency 
of original jurisdiction. Consistent with section 7104(a), if the 
person requesting to substitute for the deceased claimant disagrees 
with the agency of original jurisdiction's decision on a substitution 
request, he or she may appeal the decision to the Board.
    When the Board receives notice that an appellant has died, it will 
dismiss the appeal without prejudice and return the case to the agency 
of original jurisdiction. Thus, regardless of whether VA is working 
with an electronic or paper claims file, by the time a survivor has 
submitted a substitution request, the claims file will generally be at 
the agency of original jurisdiction. By requiring the substitution 
request to be filed with the agency of original jurisdiction, VA 
reduces the number of mailrooms and employees required to get the 
request to the organization that must act upon it. If a survivor 
inadvertently submits a substitution request to the Board, the Board 
will treat it as it does other misdirected mail and forward it to the 
agency of original jurisdiction for action. For purposes of determining 
whether a substitution request was timely filed in such cases, VA will 
treat the date that the Board received the request as the date the 
agency of original jurisdiction received it, and, as a result, no 
disadvantage accrues to the potential substitute.
    We do not make any changes based upon the commenters' suggestion 
that VA permit filing of substitution requests at the Veterans Court 
because section 5121A does not govern substitution in appeals that are 
pending before the court. Breedlove, 24 Vet. App. at 14.
    Several commenters expressed concern that having the Board dismiss 
an appeal without prejudice while a substitution request is pending 
before an agency of original jurisdiction would cause significant 
delay. We disagree. Under 38 CFR 20.900(a)(2) and 20.1302(a), a case 
returned to the Board following an agency of original jurisdiction 
decision allowing substitution or pursuant to an appeal of a denial of 
a substitution request assumes the same place on the Board's docket as 
the appeal that was pending at the time of the deceased claimant's 
death. The regulation will protect

[[Page 52980]]

eligible survivors from significant delay by authorizing the substitute 
claimant to continue the decedent's appeal from where the decedent left 
it. Therefore, VA makes no change based on these comments.
    In Sec.  3.1010(e)(3)(ii) regarding joint class representatives, we 
proposed that ``only one person of the joint class may be a substitute 
at any one time.'' One commenter suggested that limiting the number of 
substitutes and giving all substitution rights to the first eligible 
person to file a substitution request may be unconstitutional if there 
are multiple individuals with equal substitution eligibility. 
Specifically, the commenter asserted that the substitute may not 
represent the interests of all eligible survivors and that, if the 
substitute dies later than one year after the deceased claimant died 
but before the substitute completes the claims process, the remaining 
eligible survivors would have no remedy. The commenter recommended that 
VA allow all of the decedent's eligible survivors to apply and create a 
class of substitutes from which the class would select a 
representative. As explained below, we will not implement the 
commenter's recommendation that we allow a class of substitutes.
    In a House Committee on Veterans' Affairs report on a bill that 
preceded the enactment of Public Law 110-389, the Committee was clear 
that ``VA should interpret this section so that only one qualified 
dependent at a time is deemed eligible to apply as the substitute 
claimant.'' H.R. Rep. No. 110-789, at 17 (2008) (commenting on H.R. 
5892, 110th Cong.). Later, the Joint Explanatory Statement on S. 3023, 
as amended, reiterated that section 111 of H.R. 5892 ``further 
stipulates that only one person may be treated as the [substitute] 
claimant under this section.'' Joint Explanatory Statement on Amendment 
to Senate Bill, S. 3023, as Amended, 154 Cong. Rec. S10445, S10447 
(2008). Furthermore, the Compromise Agreement stipulated that ``the 
individual who would be eligible to receive accrued benefits . . . must 
file a request to be substituted as the claimant.'' Id.
    Nonetheless, we agree with the commenter that, if the substitute 
dies later than one year after the deceased claimant died but before 
the substitute completes the claims process, the remaining eligible 
survivors would have no remedy. We note that Congress did not address 
the issue raised by the commenter. Nevertheless, we reemphasize it is 
clear that Congress intended that section 5121A would liberalize 
survivors' ability to continue claims for the purpose of processing 
them to completion. Although Congress did not explicitly address 
successive substitution in section 5121A, we recognize that Congress 
implicitly contemplated allowing successive substitution and that the 
``1 year after the date of the death of the claimant'' limitation to 
file a request for substitution was intended to apply to initial 
substitution and not to successive substitution. Accordingly, and to 
address the commenter's assertion, we revised Sec.  3.1010(g)(5) to 
prescribe that upon the death of an eligible substitute another member 
of the same joint class or a member of the next preferred subordinate 
category listed in 38 CFR 3.1000(a)(1) through (5) may substitute for 
the deceased substitute but only if the person requesting the 
successive substitution files a request to substitute no later than one 
year after the date of the substitute's death (not the date of the 
claimant's death). Additionally, we interpret the 1-year limit that 
Congress put on filing a request to substitute for an original claimant 
to mean that Congress did not want the ability to substitute to 
continue indefinitely and that 1 year is a reasonable time period to 
allow an eligible survivor to apply for substitution. As a result, we 
adopted the 1-year limit that Congress assigned for initial 
substitution in section 5121A and assigned a 1-year limit to successive 
substitution in Sec.  3.1010(g)(5). Therefore, we encourage the person 
requesting to substitute for a deceased substitute to expeditiously 
apply for substitution within the requisite 1-year period following the 
substitute's death (not the date of the claimant's death), in order to 
preserve their ability to become a successive substitute.
    Several commenters suggested that proposed Sec.  3.1010(d), 
regarding evidence of eligibility for substitution, should incorporate 
language stating that VA will only require such evidence when it is not 
already in VA records and that VA will inform the person seeking 
substitution if it requires additional evidence. The commenters believe 
that requiring the substitute to resubmit information that is already 
in VA records is a duplication of effort and a waste of time. VA 
disagrees with these comments.
    A person requesting substitution may not know what evidence is in 
the deceased claimant's file. Claim files can be quite voluminous and 
may not provide family information that is current or accurate at the 
time of the deceased claimant's death. It is possible that the deceased 
claimant divorced or remarried or had a child during the period between 
the initiation of a claim or appeal and his or her death. Another 
possibility is that the deceased claimant's child has changed his or 
her name for personal or marital reasons or had to change his or her 
Social Security number in response to an identity theft. Finally, if 
the person requesting substitution was not the deceased claimant's 
dependent for purposes of VA benefits prior to the claimant's death, VA 
probably would not have the information it needs in the decedent's 
claim file.
    Requiring a person requesting substitution to provide evidence of 
eligibility to substitute is more likely to provide accurate, up-to-
date evidence of the requestor's status, which should allow VA to 
promptly process the request. Moreover, the statute authorizing 
substitution requires ``[a]ny person seeking to be substituted for [a 
deceased] claimant [to] present evidence of the right to claim such 
status.'' 38 U.S.C. 5121A(a)(2). If an eligible survivor's substitution 
request requires no further proof, VA may grant substitution without 
further inquiry. To clarify the meaning of evidence of eligibility, VA 
has modified Sec.  3.1010(d) by adding a reference to Sec.  
3.1000(a)(1) through (5). VA makes no other change based on these 
comments.
    One commenter suggested that VA address the potential situation of 
an appellant whose appeal is pending before the Board dying and the 
Board issuing a decision after the appellant's death but before the 
Board learns that the appellant has died. The commenter recommended 
that, if the Board learns the appellant died before the Board decided 
the appeal and there is a substitution-eligible survivor, then the 
Board should reissue its decision as of the date of the deceased 
claimant's death to make Board substitution procedures consistent with 
the procedures of the Veterans Court. We will not implement the 
commenter's recommendation.
    The recommendation would not work under this final rule because the 
Board's retroactive reissuance of a decision that is effective on the 
date of the claimant's death would mean that there is no appeal pending 
before the Board, such that substitution would not be available. It 
would be more advantageous for the decedent's survivor to have the 
Board vacate its post-death decision, which would mean that the appeal 
was pending before the Board when the claimant died and an eligible 
survivor could request substitution. Furthermore, upon substitution, 
the substitute claimant may submit additional evidence in support of 
the pending appeal, which could mean the

[[Page 52981]]

difference between the Board denying the appeal and the Board allowing 
of the appeal. The Board's retroactive reissuance of its decision would 
eliminate the substitute's opportunity to submit additional evidence. 
For these reasons, we make no changes based on the comment.
    One commenter expressed concern that, whenever an eligible survivor 
claims accrued benefits, survivors pension, or dependency and indemnity 
compensation, and VA concludes that the eligible survivor's claim is 
also a request to substitute, VA would provide a substitution waiver 
form to the survivor or ask the survivor whether he or she wants to 
waive the right to substitute. VA has no intention of encouraging 
waiver of substitution rights. Rather Sec.  3.1010(c)(2) merely permits 
an eligible survivor to exercise a preference not to be considered a 
substitute while VA considers the survivor's claim for accrued 
benefits, survivors pension, or dependency and indemnity compensation. 
In order to waive substitution rights that VA already granted, a 
substitute would have to provide a written waiver to VA. Thus, like 
renouncement of benefits under Sec.  3.106(a), waiver of the right to 
substitute requires a written waiver signed by the eligible survivor. 
We added language consistent with Sec.  3.106(a) in Sec.  3.1010(c)(2) 
to clarify that, for purposes of substitution, a waiver of substitution 
must be in writing and signed by the eligible survivor.
    Proposed Sec.  3.1010(g)(5) could have been interpreted as saying 
that the Board has jurisdiction over initial claims. Therefore, we have 
revised Sec.  3.1010(g)(5) to clarify the potential procedural postures 
of claims and appeals.
    One commenter noted that the proposed amendments to 38 CFR 
20.900(a) do not specifically address appeals that were advanced on the 
Board's docket under Sec.  20.900(c). Specifically, the commenter asked 
whether the substitute would be entitled to the deceased appellant's 
advanced docket placement. This commenter then proposed that a 
substitute should be entitled to the deceased appellant's advanced 
placement if the advancement was due to administrative delay or error 
but not if the advancement was for reasons of age or illness. VA 
modified Sec.  20.900(a)(2) to address this comment.
    As explained in proposed Sec.  20.900(a)(2), an appellant who is an 
eligible substitute or is appealing the denial of a substitution 
request will receive the benefit of the docket number held by the 
decedent upon his or her death. Advancement on the Board's docket is a 
separate motion procedure providing for earlier consideration and 
determination of a case where sufficient cause is shown. 38 U.S.C. 
7107(a)(2); 38 CFR 20.900(c) (stating that an advancement on the docket 
motion will be granted in certain circumstances, such as if the 
appellant is seriously ill, under severe financial hardship, or for 
other sufficient cause shown, such as advanced age or administrative 
error resulting in significant delay in docketing the case). A motion 
to advance a case on the Board's docket may be made by a party to the 
case, his or her representative, or by the Board's Chairman or Vice 
Chairman. 38 CFR 20.900(c). Advancing a case on the docket does not 
provide an appellant with a new docket number; rather it allows that 
case to be considered ahead of other cases that have been assigned an 
earlier docket number.
    Since the substitute essentially steps into the shoes of a deceased 
appellant in order to process a claim to completion, VA is revising 
proposed Sec.  20.900(a)(2) to provide a substitute with the advantage 
of any advanced docket placement that the decedent had prior to his or 
her death. However, absent such advancement, the substitute would need 
to file a motion to have the case advanced on the docket based on the 
substitute's own circumstances. For example, if a substitute is age 75 
or older, he or she would be able to file a motion for advancement on 
the docket based on age. We modified Sec.  20.900(a)(2) to clarify that 
a substitute appellant is entitled to the deceased appellant's advanced 
docket placement. We also made minor modifications to Sec.  
20.900(c)(2) to ensure it is clear that a substitute appellant may file 
a motion for advancement on the Board's docket and update the name of 
the office where appellants must file such motions for advancement.
    We made nonsubstantive changes to Sec.  20.900(a)(1) to make it 
more closely track paragraph (a)(2). In Sec.  3.1010(a), we removed the 
incorrect reference to ``of this part'' and an erroneous period placed 
in the citation to 38 CFR 3.1000(a)(1). We also added the statutory 
reference at the end of that section. In Sec.  20.1304(b)(1), we 
revised the address to reflect the correct Board office and mail code.
    Finally, we updated references to ``death pension'' to read 
``survivors pension.'' This change is intended to make the references 
consistent with the law governing pension for survivors, e.g., 38 
U.S.C. 1541, Surviving spouses of veterans of a period of war, and to 
better communicate to stakeholders the purpose of the program.
    Based on the rationale set forth in the proposed rule and this 
document, VA adopts the provisions of the proposed rule as a final rule 
with the changes discussed above.

Paperwork Reduction Act

    Although this document contains provisions constituting collections 
of information, at 38 CFR 3.1010(b) and (c) and 14.631(g), under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.), no new or proposed revised collections of information are 
associated with this final rule. The information collection 
requirements for Sec. Sec.  3.1010(b) and (c) and 14.631(g) are 
currently approved by the Office of Management and Budget (OMB) and 
have been assigned OMB control numbers 2900-0740 (VA Form 21-0847, 
Request for Substitution of Claimant Upon Death of Claimant) and 2900-
0321 (VA Form 21-22, Appointment of Veterans Service Organization as 
Claimant's Representative, and VA Form 21-22a, Appointment of 
Individual as Claimant's Representative). We are adding a parenthetical 
statement after Sec.  3.1010 so that the control number is displayed 
for the collection.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601 et. 
seq. This final rule will directly affect only individuals and will not 
directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), 
this rulemaking is exempt from the initial and final regulatory 
flexibility analysis requirements of sections 603 and 604.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant

[[Page 52982]]

regulatory action,'' which requires review by the Office of Management 
and Budget (OMB), as ``any regulatory action that is likely to result 
in a rule that may: (1) Have an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this final rule have been examined, and it has been 
determined that it is not a significant regulatory action under 
Executive Order 12886. VA's impact analysis can be found as a 
supporting document at https://www.regulations.gov, usually within 48 
hours after the rulemaking document is published. Additionally, a copy 
of the rulemaking and its impact analysis are available on VA's Web 
site at https://www1.va.gov/orpm/, by following the link for ``VA 
Regulations Published.''

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any 1 year. This final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.103, Life Insurance for 
Veterans; 64.104, Pension for Non-Service-Connected Disability for 
Veterans; 64.105, Pension to Veterans' Surviving Spouses, and Children; 
64.109, Veterans Compensation for Service-Connected Disability; 64.110, 
Veterans Dependency and Indemnity Compensation for Service-Connected 
Death; and 64.115, Veterans Information and Assistance.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit this 
document to the Office of the Federal Register for publication 
electronically as an official document of the Department of Veterans 
Affairs. Jose D. Riojas, Chief of Staff, Department of Veterans 
Affairs, approved this document on August 29, 2014, for publication.

List of Subjects

38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Pensions, Veterans.

38 CFR Part 14

    Administrative practice and procedure, Claims, Courts, Foreign 
relations, General Counsel, Government employees, Lawyers, Legal 
services, Organization and functions (Government agencies), Reporting 
and recordkeeping requirements, Surety bonds, Trusts and trustees, 
Veterans.

38 CFR Part 20

    Administrative practice and procedure, Claims, Veterans.

    Dated: September 2, 2014.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

    For the reasons set forth in the preamble, VA amends 38 CFR parts 
3, 14, and 20 as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

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1. The authority citation for part 3, Subpart A continues to read as 
follows:

    Authority:  38 U.S.C. 501(a), unless otherwise noted.


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2. Add Sec.  3.1010 to read as follows:


Sec.  3.1010  Substitution under 38 U.S.C. 5121A following death of a 
claimant.

    (a) Eligibility. If a claimant dies on or after October 10, 2008, a 
person eligible for accrued benefits under Sec.  3.1000(a) listed in 38 
CFR 3.1000(a)(1) through (5) may, in priority order, request to 
substitute for the deceased claimant in a claim for periodic monetary 
benefits (other than insurance and servicemembers' indemnity) under 
laws administered by the Secretary, or an appeal of a decision with 
respect to such a claim, that was pending before the agency of original 
jurisdiction or the Board of Veterans' Appeals when the claimant died. 
Upon VA's grant of a request to substitute, the substitute may continue 
the claim or appeal on behalf of the deceased claimant for purposes of 
processing the claim or appeal to completion. Any benefits ultimately 
awarded are payable to the substitute and other members of a joint 
class, if any, in equal shares.
    (b) Time and place for filing a request. A person may not 
substitute for a deceased claimant under this section unless the person 
files a request to substitute with the agency of original jurisdiction 
no later than one year after the claimant's death.
    (c) Request format. (1) A request to substitute must be submitted 
in writing. At a minimum, a request to substitute must indicate intent 
to substitute; include the deceased claimant's claim number, Social 
Security number, or appeal number; and include the names of the 
deceased claimant and the person requesting to substitute.
    (2) In lieu of a specific request to substitute, a claim for 
accrued benefits, survivors pension, or dependency and indemnity 
compensation by an eligible person listed in Sec.  3.1000(a)(1) through 
(5) is deemed to include a request to substitute if a claim for 
periodic monetary benefits (other than insurance and servicemembers' 
indemnity) under laws administered by the Secretary, or an appeal of a 
decision with respect to such a claim, was pending before the agency of 
original jurisdiction or the Board of Veterans' Appeals when the 
claimant died. A claimant for accrued benefits, survivors pension, or 
dependency and indemnity compensation may waive the right to substitute 
in writing over the claimant's signature.
    (d) Evidence of eligibility. A person filing a request to 
substitute must provide evidence of eligibility to substitute. Evidence 
of eligibility to substitute means evidence demonstrating that the 
person is among those listed in the categories of eligible persons in 
Sec.  3.1000(a)(1) through (5) and first in priority order. If a 
person's request to substitute does not include evidence of eligibility 
when it is originally submitted and the person may be an eligible 
person, the Secretary will notify the person--
    (1) Of the evidence of eligibility required to complete the request 
to substitute;
    (2) That VA will take no further action on the request to 
substitute unless VA receives the evidence of eligibility; and
    (3) That VA must receive the evidence of eligibility no later than 
60 days after the date of notification or one year after

[[Page 52983]]

the claimant's death, whichever is later, or VA will deny the request 
to substitute.
    (e) Decisions on substitution requests. Subject to the provisions 
of Sec.  20.1302 of this chapter, the agency of original jurisdiction 
will decide in the first instance all requests to substitute, including 
any request to substitute in an appeal pending before the Board of 
Veterans' Appeals.
    (1) Notification. The agency of original jurisdiction will provide 
written notification of the granting or denial of a request to 
substitute to the person who filed the request, together with notice in 
accordance with Sec.  3.103(b)(1).
    (2) Appeals. The denial of a request to substitute may be appealed 
to the Board of Veterans' Appeals pursuant to 38 U.S.C. 7104(a) and 
7105.
    (3) Joint class representative. (i) A joint class means a group of 
two or more persons eligible to substitute under the same priority 
group under Sec.  3.1000(a)(1) through (a)(5), e.g., two or more 
surviving children.
    (ii) In the case of a joint class of potential substitutes, only 
one person of the joint class may be a substitute at any one time. The 
first eligible person in the joint class to file a request to 
substitute will be the substitute representing the joint class.
    (f) Adjudications involving a substitute. The following provisions 
apply with respect to a claim or appeal in which a survivor has been 
substituted for the deceased claimant:
    (1) Notice under Sec.  3.159. VA will send notice under Sec.  
3.159(b), ``Department of Veterans Affairs assistance in developing 
claims,'' to the substitute only if the required notice was not sent to 
the deceased claimant or if the notice sent to the deceased claimant 
was inadequate.
    (2) Expansion of the claim not permitted. A substitute may not add 
an issue to or expand the claim. However, a substitute may raise new 
theories of entitlement in support of the claim.
    (3) Submission of evidence and other rights. A substitute has the 
same rights regarding hearings, representation, appeals, and the 
submission of evidence as would have applied to the claimant had the 
claimant not died. However, rights that may have applied to the 
claimant prior to death but which cannot practically apply to a 
substitute, such as the right to a medical examination, are not 
available to the substitute. The substitute must complete any action 
required by law or regulation within the time period remaining for the 
claimant to take such action on the date of his or her death. The time 
remaining to take such action will start to run on the date of the 
mailing of the decision granting the substitution request.
    (4) Board of Veterans' Appeals procedures. The rules and procedures 
governing appeals involving substitutes before the Board of Veterans' 
Appeals are found in parts 19 and 20 of this chapter.
    (g) Limitations on substitution. The following limitations apply 
with respect to substitution:
    (1) A claim or appeal must be pending. (i) A claim is considered to 
be pending if the claimant had filed the claim with an agency of 
original jurisdiction but dies before the agency of original 
jurisdiction makes a decision on the claim. A claim is also considered 
to be pending if, at the time of the claimant's death, the agency of 
original jurisdiction has made a decision on the claim, but the 
claimant has not filed a notice of disagreement, and the period allowed 
by law for filing a notice of disagreement has not expired.
    (ii) An appeal is considered to be pending if a claimant filed a 
notice of disagreement in response to a notification from an agency of 
original jurisdiction of its decision on a claim, but dies before the 
Board of Veterans' Appeals issues a final decision on the appeal. If 
the Board issued a final decision on an appeal prior to the claimant's 
death, the appeal is not pending before VA for purposes of this 
section, even if the 120-day period for appealing the Board's decision 
to the Court of Appeals for Veterans Claims has not yet expired.
    (2) Benefits awarded. Any benefits ultimately awarded are limited 
to any past-due benefits for the time period between the effective date 
of the award and what would have been the effective date of 
discontinuance of the award as a result of the claimant's death.
    (3) Benefits for last sickness and burial only. When substitution 
cannot be established under any of the categories listed in Sec.  
3.1000(a)(1) through (a)(4), only so much of any benefits ultimately 
awarded may be paid as may be necessary to reimburse the person who 
bore the expense of last sickness and burial. No part of any benefits 
ultimately awarded shall be used to reimburse any political subdivision 
of the United States for expenses incurred in the last sickness or 
burial of any claimant.
    (4) Substitution by subordinate members prohibited. Failure to 
timely file a request to substitute, or a waiver of the right to 
request substitution, by a person of a preferred category of eligible 
person will not serve to vest the right to request substitution in a 
person in a lower category or a person who bore the expense of last 
sickness and burial; neither will such failure or waiver by a person or 
persons in a joint class serve to increase the amount payable to other 
persons in the class.
    (5) Death of a substitute. If a substitute dies while a claim or 
appeal is pending before an agency of original jurisdiction, or an 
appeal of a decision on a claim is pending before the Board, another 
member of the same joint class or a member of the next preferred 
subordinate category listed in Sec.  3.1000(a)(1) through (5) may 
substitute for the deceased substitute but only if the person 
requesting the successive substitution files a request to substitute no 
later than one year after the date of the substitute's death (not the 
date of the claimant's death).

(Authority: 38 U.S.C. 5121, 5121A)


    (The Office of Management and Budget has approved the 
information collection requirements in this section under control 
number 2900-0740)

PART 14--LEGAL SERVICES, GENERAL COUNSEL, AND MISCELLANEOUS CLAIMS

0
3. The authority citation for part 14 continues to read as follows:

    Authority:  5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a), 
512, 515, 5502, 5901-5905; 28 CFR part 14, appendix to part 14, 
unless otherwise noted.


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4. Amend Sec.  14.630 by adding paragraph (e) and revising the 
authority citation at the end of the section to read as follows:


Sec.  14.630.  Authorization for a particular claim.

* * * * *
    (e) With respect to the limitation in paragraph (b) of this 
section, a person who had been authorized under paragraph (a) of this 
section to represent a claimant who later dies and is replaced by a 
substitute pursuant to 38 CFR 3.1010 for purposes of processing the 
claim to completion will be permitted to represent the substitute if 
the procedures of Sec.  14.631(g) are followed.

(Authority: 38 U.S.C. 501(a), 5121A, 5903)



0
5. Amend Sec.  14.631 by adding paragraph (g) and revising the 
authority citation at the end of the section to read as follows:


Sec.  14.631.  Powers of attorney; disclosure of claimant information.

* * * * *
    (g) If a request to substitute is granted pursuant to 38 CFR 
3.1010, then a new VA Form 21-22, ``Appointment of

[[Page 52984]]

Veterans Service Organization as Claimant's Representative,'' or VA 
Form 21-22a, ``Appointment of Individual as Claimant's 
Representative,'' under paragraph (a) of this section is required in 
order to represent the substitute before VA. If the substitute desires 
representation on a one-time basis pursuant to Sec.  14.630(a), a 
statement signed by the person providing representation and the 
substitute that no compensation will be charged or paid for the 
services is also required.

(Authority: 38 U.S.C. 501(a), 5121A, 5902, 5903, 5904)

* * * * *

PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE

0
6. The authority citation for part 20 continues to read as follows:

    Authority:  38 U.S.C. 501(a) and as noted in specific sections.

Subpart J--Action by the Board

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7. Amend Sec.  20.900 by:
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a. Revising paragraph (a).
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b. Revising paragraph (c)(2).
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c. Revising the authority citation at the end of the section.
    The revisions read as follows:


Sec.  20.900  Rule 900. Order of consideration of appeals.

    (a) Docketing of appeals. Applications for review on appeal are 
docketed in the order in which they are received.
    (1) A case returned to the Board following action pursuant to a 
remand assumes its original place on the docket.
    (2) A case returned to the Board following the grant of a 
substitution request or pursuant to an appeal of a denial of a 
substitution request assumes the same place on the docket held by the 
deceased appellant at the time of his or her death. Pursuant to 
paragraph (c) of this section, if the deceased appellant's case was 
advanced on the docket prior to his or her death, the substitute will 
receive the benefit of the advanced placement.
* * * * *
    (c) * * *
    (2) Requirements for motions. Motions for advancement on the docket 
must be in writing and must identify the specific reason(s) why 
advancement on the docket is sought, the name of the veteran, the name 
of the appellant if other than the veteran (e.g., a veteran's survivor, 
a guardian, a substitute appellant, or a fiduciary appointed to receive 
VA benefits on an individual's behalf), and the applicable Department 
of Veterans Affairs file number. The motion must be filed with: 
Director, Office of Management, Planning and Analysis (014), Board of 
Veterans' Appeals, 810 Vermont Avenue NW., Washington, DC 20420.
* * * * *

(Authority: 38 U.S.C. 5121A, 7107; Pub. L. 103-446, Sec.  302)

Subpart L--Finality

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8. Revise Sec.  20.1106 to read as follows:


Sec.  20.1106  Rule 1106. Claim for death benefits by survivor--prior 
unfavorable decisions during veteran's lifetime.

    Except with respect to benefits under the provisions of 38 U.S.C. 
1311(a)(2) and 1318, and certain cases involving individuals whose 
Department of Veterans Affairs benefits have been forfeited for treason 
or for subversive activities under the provisions of 38 U.S.C. 6104 and 
6105, issues involved in a survivor's claim for death benefits will be 
decided without regard to any prior disposition of those issues during 
the veteran's lifetime. Cases in which a person substitutes for a 
deceased veteran under 38 U.S.C. 5121A are not claims for death 
benefits and are not subject to this section. Cases in which a person 
substitutes for a deceased death benefits claimant under 38 U.S.C. 
5121A are claims for death benefits subject to this section.

(Authority: 38 U.S.C. 5121A, 7104(b)).

Subpart N--Miscellaneous

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9. Revise Sec.  20.1302 to read as follows:


Sec.  20.1302  Rule 1302. Death of appellant during pendency of appeal 
before the Board.

    (a) General. An appeal pending before the Board of Veterans' 
Appeals when the appellant dies will be dismissed without prejudice. A 
person eligible for substitution under Sec.  3.1010 of this chapter may 
file with the agency of original jurisdiction a request to substitute 
for the deceased appellant. If the agency of original jurisdiction 
grants the request to substitute, the case will assume its original 
place on the docket pursuant to Rule 900 (Sec.  20.900(a)(2)). If the 
agency of original jurisdiction denies the request to substitute and 
the person requesting to substitute appeals that decision to the Board, 
the appeal regarding eligibility to substitute will assume the same 
place on the docket as the original claim pursuant to Rule 900 (Sec.  
20.900(a)(2)).
    (b) Exception. (1) If a hearing request is pending pursuant to Rule 
704 (Sec.  20.704) when the appellant dies, the agency of original 
jurisdiction may take action on a request to substitute without regard 
to whether the pending appeal has been dismissed by the Board, if the 
request is submitted in accordance with Sec.  3.1010 of this chapter.
    (2) If the agency of original jurisdiction grants the request to 
substitute, the Board of Veterans' Appeals can then take the testimony 
of the substitute at a hearing held pursuant to Rules 700 through 717 
(Sec. Sec.  20.700 through 20.717). If the substitute desires 
representation at the hearing, he or she must appoint a representative 
prior to the hearing pursuant to Sec.  14.631(g) of this chapter.


(Authority: 38 U.S.C. 5121A, 7104(a)).


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10. In Sec.  20.1304, revise paragraph (b)(1) introductory text and the 
authority citation at the end of the section to read as follows:


Sec.  20.1304  Rule 1304. Request for change in representation, request 
for personal hearing, or submission of additional evidence following 
certification of an appeal to the Board of Veterans' Appeals.

* * * * *
    (b) * * *
    (1) General rule. Subject to the exception in paragraph (b)(2) of 
this section, following the expiration of the period described in 
paragraph (a) of this section, the Board of Veterans' Appeals will not 
accept a request for a change in representation, a request for a 
personal hearing, or additional evidence except when the appellant 
demonstrates on motion that there was good cause for the delay. 
Examples of good cause include, but are not limited to, illness of the 
appellant or the representative which precluded action during the 
period; death of an individual representative; illness or incapacity of 
an individual representative which renders it impractical for an 
appellant to continue with him or her as representative; withdrawal of 
an individual representative; the discovery of evidence that was not 
available prior to the expiration of the period; and delay in transfer 
of the appellate record to the Board which precluded timely action with 
respect to these matters. Such motions must be in writing and must 
include the name of the veteran; the name of the claimant or appellant 
if other than the veteran (e.g., a veteran's survivor, a guardian, or a 
fiduciary appointed to receive VA benefits on an individual's behalf) 
or the name of any substitute claimant or appellant; the applicable 
Department of Veterans Affairs file number; and an explanation of why 
the request for a change in representation, the request for a personal 
hearing, or the submission of additional evidence could not be 
accomplished in a timely manner. Such motions must be filed at the 
following

[[Page 52985]]

address: Director, Office of Management, Planning and Analysis (014), 
Board of Veterans' Appeals, 810 Vermont Avenue NW., Washington, DC 
20420. Depending upon the ruling on the motion, action will be taken as 
follows:
* * * * *

(Authority: 38 U.S.C. 5121A, 5902, 5903, 5904, 7104, 7105, 7105A)


[FR Doc. 2014-21139 Filed 9-4-14; 8:45 am]
BILLING CODE 8320-01-P