Substitution in Case of Death of Claimant, 8666-8674 [2011-3196]

Download as PDF 8666 Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules § 117.821 Atlantic Intracoastal Waterway, Albermarle Sound to Sunset Beach. of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Department of Homeland Security Management Directive 023–01, and Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment because it simply promulgates the operating regulations or procedures for drawbridges. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. Bridges. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows: jlentini on DSKJ8SOYB1PROD with PROPOSALS PART 117—DRAWBRIDGE OPERATION REGULATIONS Authority: 33 U.S.C. 499; 33 CFR 1.05–1; Department of Homeland Security Delegation No. 0170.1. 16:26 Feb 14, 2011 Jkt 223001 Cape Fear River. The draw of the Cape Fear Memorial Bridge, mile 26.8, at Wilmington need not open for the passage of vessels from 8 a.m. to 10 a.m. on the second Saturday of July of every year, and from 7 a.m. to 11 a.m. on the first or second Sunday of November of every year to accommodate annual marathon races. 4. Revise § 117.829(a)(4) to read as follows: § 117.829 Northeast Cape Fear River. (a)* * * (4) From 8 a.m. to 10 a.m. on the second Saturday of July of every year, from 12 p.m. to 11:59 p.m. on the last Saturday of October or the first or second Saturday of November of every year, and from 7 a.m. to 11 a.m. on the first or second Sunday of November of every year, the draw need not open for vessels to accommodate annual marathon and triathlon races. * * * * * Dated: February 1, 2011. William D. Lee, Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. 2011–3355 Filed 2–14–11; 8:45 am] BILLING CODE 9110–04–P 38 CFR Parts 3, 14, 20 RIN 2900–AN91 Substitution in Case of Death of Claimant Department of Veterans Affairs. Proposed rule. AGENCY: 1. The authority citation for part 117 continues to read as follows: VerDate Mar<15>2010 § 117.823 DEPARTMENT OF VETERANS AFFAIRS List of Subjects in 33 CFR Part 117 2. Revise § 117.821(a)(4) to read as follows: (a) * * * (4) S.R. 74 Bridge, mile 283.1, at Wrightsville Beach, NC, between 7 a.m. and 7 p.m., the draw need only open on the hour; except that from 7 a.m. to 11 a.m. on the third and fourth Saturday in September of every year, the draw need not open for vessels and between 7 a.m. and 10:30 a.m. on the last Saturday of October each year or the first or second Saturday of November of every year the draw need not open for vessels due to annual triathlon events. 3. Revise § 117.823 to read as follows: ACTION: The Department of Veterans Affairs (VA) proposes to amend its regulations concerning adjudication of claims, representation of claimants, and Board of Veterans’ Appeals rules of practice. These amendments would SUMMARY: PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 implement section 212 of the Veterans’ Benefits Improvement Act of 2008, which allows an eligible survivor to substitute for a deceased claimant in order to complete the processing of the deceased claimant’s claim. The intended effect of these amendments is to clarify the rules and procedures for those situations in which substitution is authorized. Under section 212, if a claimant dies while his or her claim or appeal is pending before VA, a survivor who would be eligible for accrued benefits under existing statutory authority may, not later than one year after the death of the claimant, request to be substituted for the claimant for the purposes of processing the claim or appeal to completion. Accordingly, after substitution, VA will continue to process the claim or appeal as if the claimant had not died. These amendments clarify the following matters: Eligibility for substitution, how an eligible survivor makes a request to substitute, how VA responds to requests to substitute, a substitute’s rights in adjudication, limitations related to substitution, order of preference among eligible survivors, representation of substitutes, and procedures for substitution when a claim is before the Board of Veterans’ Appeals. DATES: Comments must be received by VA on or before April 18, 2011. ADDRESSES: Written comments may be submitted through www.Regulations.gov; by mail or handdelivery to Director, Regulations Management (02REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 273–9026. (This is not a toll free number.) Comments should indicate that they are submitted in response to ‘‘RIN 2900– AN91—Substitution in Case of Death of Claimant.’’ Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461–4902 for an appointment. (This is not a toll free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at http:// www.Regulations.gov. FOR FURTHER INFORMATION CONTACT: Robert Watkins, Department of Veterans Affairs, Veterans Benefits Administration, Compensation and Pension Service, Regulation Staff (211D), 810 Vermont Avenue, NW., Washington, DC 20420, 202–461–9214. (This is not a toll-free number.) E:\FR\FM\15FEP1.SGM 15FEP1 Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules Section 212 of the Veterans’ Benefits Improvement Act of 2008, Public Law 110–389 (the Act), added to title 38, United States Code, a provision codified at 38 U.S.C. 5121A. It authorizes a living person eligible to receive accrued benefits under 38 U.S.C. 5121(a) to substitute for a deceased claimant in order to process a claim or appeal pending before VA to completion. Section 5121A permits, upon timely request, a person who would be eligible for accrued benefits under 38 U.S.C. 5121(a) to continue a claim that was pending when the claimant died. The legislative intent in enacting section 212 was to change the then-state of the law, which permitted eligible survivors to file an accrued benefits claim after the death of a claimant, but made no provision for substitution. See 154 Cong. Rec. S10447 (daily ed. Oct. 2, 2008) (Joint Explanatory Statement on Amendment to Senate Bill, S. 3023, as Amended) (‘‘Currently * * * 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.’’); 38 U.S.C. 5121. A successful accrued benefits claim can only result in payment of those benefits ‘‘to which [the claimant] was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death * * * and due and unpaid.’’ 38 U.S.C. 5121. By permitting substitution, Congress created a new procedural right and expanded the nature of benefits that eligible survivors can secure following a claimant’s death. The availability of substitution means that survivors are no longer limited to those benefits to which the claimant was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death. However, the types of benefits payable to a survivor—periodic monetary benefits (other than insurance and servicemembers’ indemnity)— remain the same. To implement the Act, VA proposes to add to 38 CFR part 3, subpart A, a new § 3.1010 to clarify adjudication procedures affected by section 5121A. Because the Act inserted section 5121A immediately after section 5121 in title 38, U.S. Code, and otherwise closely links the two statutes, VA proposes to insert 5121A’s implementing regulation, § 3.1010, immediately after section 5121’s existing implementing regulations at §§ 3.1000–3.1009 (referred to as the ‘‘accrued benefits regulations’’). Further, VA proposes to generally model §§ 3.1010 after the accrued benefits regulations to the extent jlentini on DSKJ8SOYB1PROD with PROPOSALS SUPPLEMENTARY INFORMATION: VerDate Mar<15>2010 16:26 Feb 14, 2011 Jkt 223001 appropriate. In addition, VA proposes to add to and amend portions of part 14 to address the representation of substitutes before VA. Finally, VA proposes to add to and amend portions of 38 CFR part 20 to clarify procedures before the Board of Veterans’ Appeals (Board) affected by section 5121A. Section 5121A(a)(3) provides: ‘‘Substitution under this subsection shall be in accordance with such regulations as the Secretary may prescribe.’’ In addition, section 5121A(a)(2) states, ‘‘Any person seeking to be substituted for the claimant shall present evidence of the right to claim such status within such time as prescribed by the Secretary in regulations.’’ Finally, pursuant to 38 U.S.C. 501(a), the Secretary possess the authority to prescribe all the rules and regulations that are necessary or appropriate to carry out the laws administered by VA and that are consistent with those laws. Pursuant to the authority granted to the Secretary under sections 501(a) and 5121A, VA proposes the addition of § 3.1010 and the amendment of §§ 14.630, 14.631, 20.900, 20.1106, 20.1302, and 20.1304. With respect to each of these amendments, VA proposes to add a citation to 38 U.S.C. 5121A in the existing authority citation. The following sections of this SUPPLEMENTARY INFORMATION discuss in more detail the proposed changes to parts 3, 14, and 20. Amendments to Part 3 Eligibility for and Scope of Substitution Proposed § 3.1010(a) would set forth the eligibility criteria for substitution. In accordance with the Act (38 U.S.C. 5121A(a)(1)), the proposed rule states that, if a claimant dies on or after the effective date of the Act—October 10, 2008—then a person who would be eligible to receive accrued benefits under § 3.1000(a) of the accrued benefits regulations may request to become a substitute for the deceased claimant in a claim for periodic monetary benefits (other than insurance and servicemen’s indemnity) under laws administered by the Secretary, or an appeal of a decision with respect to such a claim that was pending, when the claimant died. The ‘‘claimant’’ is in most circumstances a veteran claiming benefits based upon his or her own service. However, the ‘‘claimant’’ could also be a veteran’s surviving spouse, the veteran’s child, or a person receiving an apportioned share of a veteran’s benefits, if such person were claiming benefits based on their original entitlement, rather than the entitlement of another person. PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 8667 Proposed § 3.1010(a) would also describe the scope of substitution. Consistent with the Act (38 U.S.C. 5121A(a)(1)), § 3.1010(a) would state, ‘‘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.’’ Requests To Substitute and Determinations Proposed § 3.1010(b) would describe the time and place for filing a request to substitute. Consistent with the Act (38 U.S.C. 5121A(a)(1)), § 3.1010(b) would require that a person desiring to substitute for a deceased claimant file a request to substitute ‘‘no later than one year after the claimant’s death.’’ Proposed § 3.1010(b) would also require that all requests to substitute be filed with the agency of original jurisdiction (AOJ) for a decision on the request to substitute in the first instance. Similarly, proposed § 3.1010(e), ‘‘Decisions on substitution requests,’’ would specify that the AOJ ‘‘will decide in the first instance all requests to substitute, including any request to substitute in an appeal pending before the Board.’’ These provisions would clarify that, if a claimant dies while his or her appeal is pending before the Board, a person seeking to substitute must file a request to substitute with the AOJ in order to receive an initial decision on a request to substitute. Pursuant to proposed § 3.1010(g)(1)(ii), an appeal would be 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. Once the Board issues its final decision on an appeal, the appeal is not pending 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.’’ As explained in more detail below, this procedure is consistent with the Board’s jurisdictional authority, 38 U.S.C. 7104(a), which provides that ‘‘[a]ll questions in a matter which * * * is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board.’’ See 38 CFR 20.101(a) (emphasis added). Because neither the Act nor any other legislation amended the Board’s jurisdictional statute at 38 U.S.C. 7104(a), the Board lacks original jurisdiction to decide a request to substitute in the first instance, but, as E:\FR\FM\15FEP1.SGM 15FEP1 jlentini on DSKJ8SOYB1PROD with PROPOSALS 8668 Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules discussed below in this preamble, may hear an appeal of a denial of a request to substitute. The Board’s role in VA’s adjudication system is generally limited to providing appellate review of adverse decisions made by an AOJ. With very limited exceptions, such as motions to revise a final Board decision based upon clear and unmistakable error, the Board does not have original jurisdiction over matters subject to a decision by the Secretary. Because the Board is jurisdictionally limited to deciding appeals, the Board cannot entertain requests to substitute in the first instance, as this would be outside the Board’s jurisdiction and deprive putative substitutes of their statutory right to ‘‘one review on appeal to the Secretary’’ in the event of a Board denial of a request to substitute. Under the current statutory scheme, an AOJ decision on a request to substitute is itself appealable to the Board. Accordingly, under proposed § 3.1010(e)(2), ‘‘Appeals,’’ the denial of a request to substitute may be appealed to the Board. For these reasons, the AOJ, not the Board, must decide these requests in the first instance. Notably, the Act (38 U.S.C. 5121A(a)(2)) contemplates the submission of evidence to establish eligibility for substitution, specifically providing that ‘‘[a]ny person seeking to be substituted for the claimant shall present evidence of the right to claim such status.’’ (emphasis added). (Proposed § 3.1010(d), discussed below in this preamble, would address the submission of evidence in support of a request to substitute.) The United States Court of Appeals for the Federal Circuit has made clear that, except as otherwise specifically provided by law, the Board generally cannot develop and consider evidence in the first instance. Initial consideration of evidence, including that relating to eligibility for substitution, must be undertaken by the AOJ. See Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003) (DAV) (‘‘[w]hen the Board obtains evidence that was not considered by the AOJ * * * an appellant has no means to obtain ‘one review on appeal to the Secretary,’ because the Board is the only appellate tribunal under the Secretary’’). This is another reason to have all requests to substitute be decided by an AOJ in the first instance. Proposed § 3.1010 would contain no provision allowing a person requesting to substitute the option of waiving his or her right to one review on appeal. In DAV, the Federal Circuit implicitly approved of waiver by a claimant of the VerDate Mar<15>2010 16:26 Feb 14, 2011 Jkt 223001 consideration of evidence by the AOJ in the first instance. 327 F.3d at 1341. However, it would be contrary to VA’s statutory adjudication authority to employ the use of waivers in the context of a decision on a request to substitute. An AOJ decision on a request to substitute is an appealable decision under to 38 U.S.C. 7104(a). See, e.g., 20 CFR 19.28 (establishing as an appealable issue the question of whether a notice of disagreement is adequate). A significant difference exists between waiving the AOJ’s consideration of certain evidence regarding a claim and waiving the AOJ’s consideration of an appealable issue in the first instance, particularly because waiver would require original jurisdiction that the Board lacks. Nothing in DAV suggests that the Board has the authority to adjudicate an appealable issue in the first instance. Rather, DAV stands for the proposition that the Board may consider newly obtained evidence that was not first considered by the AOJ as part of its adjudication of an issue if a valid waiver is obtained from the appellant. In the context of a request to substitute, the Board would not be soliciting a waiver for purposes of considering evidence regarding eligibility to substitute, which would be a situation analogous to the discussion of waiver in DAV. For these reasons, proposed § 3.1010 would make no provision for waiver of AOJ consideration of a request to substitute in the first instance. Proposed § 3.1010(e)(3) would define the term ‘‘joint class’’ and provide the joint class order of preference rules for substitution. Specifically, under § 3.1010(e)(3), ‘‘Joint class representative,’’ a ‘‘joint class’’ would mean ‘‘a group of two or more persons eligible to substitute under the same priority group under 38 CFR 3.1000(a)(1) through (a)(5), e.g., two or more surviving children.’’ As explained above, Congress closely linked section 5121A and section 5121. Also, the Act (38 U.S.C. 5121A(b)) specifically provides the limitation that ‘‘[t]hose who are eligible to make a claim under this section shall be determined in accordance with section 5121.’’ Thus, it is consistent with the Act to apply the eligibility standards in the accrued benefits regulations to the substitution regulations. The proposed definition of ‘‘joint class’’ would simply describe the eligibility categories enumerated in the accrued benefits statute at 38 U.S.C. 5121(a) that could contain multiple persons, such as ‘‘[t]he veteran’s children’’ and ‘‘[t]he veteran’s dependent parents.’’ Although the phrase ‘‘joint PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 class’’ is used in the accrued benefits regulations at 38 CFR 3.1000(c)(2), it is not described in further detail. For the sake of clarity, the proposed rule would include a definition of ‘‘joint class.’’ We propose in § 3.1010(e)(3)(ii) that ‘‘only one person of the joint class may be a substitute at any one time,’’ and ‘‘[t]he first person in the joint class to file a request to substitute that is granted will be the substitute representing the joint class.’’ This is consistent with the Act (38 U.S.C. 5121A(a)), which authorizes only ‘‘a person’’ to substitute. Format of Request To Substitute Proposed § 3.1010(c), ‘‘Request format,’’ would specify the required format for a request to substitute. Under proposed § 3.1010(c), a request to substitute would be required to be submitted in writing. Further, a request to substitute would be required to contain, at a minimum, the word ‘‘substitute’’ or ‘‘substitution,’’ the applicable claim number or appeal number, and the names of the deceased claimant and the person requesting to substitute. Alternatively, under proposed § 3.1010(c)(2), a claim for accrued benefits, death pension, or dependency and indemnity compensation by an eligible person listed in 38 CFR 3.1000(a)(1) through (5) would be 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 AOJ or the Board when the claimant died. This provision would be consistent with VA’s current treatment of claims for death benefits as interchangeable. Specifically, 38 CFR 3.152(b)(1) requires that ‘‘[a] claim by a surviving spouse or child for [death] compensation or dependency and indemnity compensation * * * be considered to be a claim for death pension and accrued benefits, and a claim by a surviving spouse or child for death pension * * * be considered to be a claim for death compensation or dependency and indemnity compensation and accrued benefits.’’ Although under the proposed rule VA would treat qualifying death benefits claims as requests to substitute, VA anticipates that not all persons filing a claim for death benefits will wish to substitute for a deceased claimant. Therefore, VA would provide an opportunity for a person to waive the right to substitute when he or she has filed a claim for accrued benefits, death pension, or dependency and indemnity E:\FR\FM\15FEP1.SGM 15FEP1 Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules jlentini on DSKJ8SOYB1PROD with PROPOSALS compensation, which VA would otherwise deem a request to substitute. Evidence of Eligibility To Substitute Proposed § 3.1010(d), ‘‘Evidence of eligibility,’’ would address the submission of evidence in support of a request to substitute. Consistent with the Act (38 U.S.C. 5121A(a)(2)), proposed § 3.1010(d) would establish the time period in which a person seeking to be substituted for a deceased claimant must present evidence of the right to claim such status. As an initial matter, a person desiring to substitute would have to file a request to substitute no later than one year after the claimant’s death, pursuant to the Act (38 U.S.C. 5121A(a)(1)) and as would be required under proposed § 3.1010(b). Under proposed § 3.1010(d), if the request to substitute does not include sufficient evidence of the person’s eligibility to substitute, then VA would send notification to the person who filed the request. VA would not provide notification if the person filing the request could not be an eligible person. For example, VA would not send notification if the person who filed the request claimed to be an individual outside the categories of eligible persons under 38 CFR 3.1000(a)(1) through (5). Pursuant to proposed § 3.1010(d)(1) through (3), a person who filed a request to substitute without necessary evidence of eligibility would be notified: ‘‘(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 the claimant’s death, whichever is later, or VA will deny the request to substitute.’’ Thus, under proposed § 3.1010(d)(1), a person who does not provide required evidence of eligibility to substitute with their request to substitute would be given 60 days from the date of VA’s notification or until the expiration of one year after the claimant’s death, whichever is later, to provide necessary evidence of eligibility. The later of 60 days from the date of notification or one year from the date of the claimant’s death is a reasonable time in which to submit evidence of eligibility to substitute, especially because VA would have notified the person who filed the request of the evidence required to demonstrate eligibility. The accrued benefits regulation at § 3.1000(c)(1)(iii) gives an accrued benefits claimant 1 year from the date of VA’s notification of an incomplete VerDate Mar<15>2010 16:26 Feb 14, 2011 Jkt 223001 application for accrued benefits in which to provide the necessary eligibility evidence. However, this 1year time period from the date of notification is mandated by the accrued benefits statute at 38 U.S.C. 5121(c). In contrast, under the Act (38 U.S.C. 5121A(a)(2)), Congress granted the Secretary the authority to establish the time period for the submission of evidence of eligibility to substitute with the intent of ensuring the timely submission of evidence. The sooner the AOJ receives evidence of eligibility to substitute, the sooner an eligible person may become a substitute and begin to process to completion the claim or appeal that was pending. Such timeliness is less significant under the accrued benefits statute (38 U.S.C. 5121), which does not provide for the completion of any pending claim or appeal. Further, proposed § 3.1010 would be consistent with the Act (38 U.S.C. 5121A) because in no event would a person requesting to substitute be given less than 1 year from the date of the claimant’s death in which to complete the request to substitute. Adjudications Before the AOJ Proposed § 3.1010(f) would clarify the rules governing an adjudication before the AOJ of a claim involving a substitute. As noted in proposed § 3.1010(f)(5), the rules governing an appeal before the Board involving a substitute are specifically addressed in parts 19 and 20, the proposed amendments to which are discussed below in this preamble. As a general matter, all part 3 regulations that would have been applicable to the claimant had the claimant not died would be applicable to the substitute under the proposed regulations, with some exceptions predicated on the fact that the claimant has died. Under proposed § 3.1010(f)(1), VA would send to a substitute notice under 38 CFR 3.159(b) only if the required notice was not sent to the deceased claimant or if the notice sent to the deceased claimant was inadequate. Section 3.159(b) governs VA’s duty to notify claimants of information or evidence that is necessary to substantiate a claim and is the implementing regulation for the notification duty imposed on VA by the Veterans Claims Assistance Act (VCAA) of 2000 (Pub. L. 106–475), codified at 38 U.S.C. 5103. VA recognizes that in some circumstances a claimant would have been provided this VCAA notice under § 3.159(b) prior to death. In such cases, VA will send notice to a substitute only if notice was not previously sent or was inadequate because a substitute is PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 8669 generally considered to ‘‘stand in the shoes’’ of the deceased claimant. Under proposed § 3.1010(f)(2), a substitute would be expressly prohibited from adding new issues to or expanding the existing claim. However, a substitute would be permitted to raise new theories of entitlement as to the claim. This limitation would be consistent with the Act (38 U.S.C. 5121A(a)(1)) because the Act contemplates that a substitute will replace a deceased claimant for the purpose of processing a claim or appeal that was pending to completion. However, the Act does not authorize a person to add new issues to a claim, which would be tantamount to filing a new claim on behalf of a deceased claimant. For example, if a veteran had a claim pending regarding the single issue of service connection for a knee injury, a substitute could raise a previously unraised theory of entitlement, such as secondary service connection. However, the substitute could not add the issue of or file a claim for service connection for post-traumatic stress disorder. Although a substitute could not add new issues to or expand a claim, under proposed § 3.1010(f)(3), a substitute could submit evidence and generally would have the same rights regarding hearings, representation, and appeals as would have applied to the claimant had the claimant not died. Limitations on Substitution Proposed § 3.1010(g), ‘‘Limitations on substitution,’’ would address the limitations that apply to substitution. These limitations would help to further clarify the scope of substitution and would be consistent with the language of the Act. Section 3.1010(g)(1) would clarify when a person may substitute for a deceased claimant by specifying that a claim or appeal must be undecided to be pending for purposes of substitution. Specifically, a person could substitute if a claim has been filed with but has not been decided by the AOJ before the claimant’s death, or if a notice of disagreement has been filed to initiate an appeal to the Board, but the Board has not decided the appeal before the claimant’s death. In other words, a person could not substitute for a ‘‘claimant’’ who dies without first filing a claim or initiating an appeal, even if the substitute were to file a request to substitute during the appeal period. VA recognizes that the limitation in proposed § 3.1010(g)(1) may appear to conflict with VA’s definitions of ‘‘pending claim’’ and ‘‘finally adjudicated claim’’ in 38 CFR 3.160, ‘‘Status of claims.’’ Pursuant to E:\FR\FM\15FEP1.SGM 15FEP1 jlentini on DSKJ8SOYB1PROD with PROPOSALS 8670 Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules paragraphs (c) and (d) of § 3.160, a ‘‘pending claim’’ is one that has not been ‘‘finally adjudicated,’’ and a ‘‘finally adjudicated claim’’ means ‘‘[a]n application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier.’’ This means that a decided claim for which the 1year appeal period has not yet expired is considered a ‘‘pending claim’’ unless the Board has already decided the appeal. However, the Act does not use the term ‘‘pending claim’’ or ‘‘finally adjudicated claim,’’ and VA does not use these terms in the proposed rule. VA interprets the phrase in the Act ‘‘a claim * * * or an appeal * * * is pending’’ to mean that a claim or appeal must have been initiated by the claimant before death in order for an eligible person to substitute for the claimant upon the claimant’s death. In the context of a living claimant, a claim must be a ‘‘pending claim’’ until the expiration of the appeal period because that claimant could initiate an appeal at any time during that period. Also, a claim must be a ‘‘pending claim’’ even if appealed to the Board and not yet decided by the Board because of the possibility of the Board remanding the claim for additional development. However, when a claimant dies before initiating a claim or appeal, substitution is not available because a person may not substitute for the purpose of initiating a claim or an appeal. As explained above, the Act authorizes VA to pay benefits of a different nature than allowed by the accrued benefits statute, i.e., benefits not limited to those to which the claimant was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid. Proposed § 3.1010(g)(2) would further clarify the nature of benefits payable under section 5121A. First, paragraph (g)(2) would clarify that VA is authorized to award only past-due benefits to the substitute and other members of a joint class, if any. Second, paragraph (g)(2) would specify that past-due benefits are those 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. See 38 CFR 3.500(g). In other words, a substitute would be eligible to receive past-due benefits for the period between the effective date of the award and the last VerDate Mar<15>2010 16:26 Feb 14, 2011 Jkt 223001 day of the month preceding the claimant’s death. Proposed paragraphs (g)(3) and (g)(4) would parallel provisions in the accrued benefits statute and implementing regulations. As discussed previously, parallelism between the proposed substitution regulations and the accrued benefits regulations is generally appropriate given that Congress closely linked the two statutes together. Proposed § 3.1010(g)(3) would describe when the amount of benefits awarded to a substitute and members of a joint class, if any, is limited to the amount of the expense of last sickness and burial. This provision would simply repeat the limitation under the accrued benefits statute at 38 U.S.C. 5121(a)(6), implemented at 38 CFR 3.1000(a)(5), which limits the amount of accrued benefits payable when entitlement cannot be established under categories (a)(1) through (a)(5) of that section. Because the Act (38 U.S.C. 5121A(a)(1)) defines eligibility to substitute in terms of the eligibility criteria under section 5121(a), the benefit amount limitation inherent in the eligibility provisions of section 5121(a)(6) applies to a person substituted on the basis of having borne the expense of last sickness and burial. Proposed paragraph (g)(4) would mirror the accrued benefits regulation at § 3.1000(c)(2) and clarify that, if an eligible person in a priority category fails or waives the right to file a request to substitute, persons of a lower category are not permitted to substitute. Similarly, under proposed paragraph (g)(4), failure or waiver of the right to file a request to substitute by a member of a joint class would not serve to increase the amount payable to other persons in the class. Finally, proposed paragraph (g)(5) would explain when subsequent substitutions are permitted upon the death of a substitute. Proposed paragraph (g)(5) would permit substitution for a deceased substitute only under the same circumstances in which substitution would have been permitted for a deceased claimant. In other words, substitution for a substitute would be permitted only if the substitute died while a claim was pending before the AOJ or the Board or an appeal of a decision on a claim was pending before the AOJ or the Board. Further, proposed paragraph (g)(5) would allow substitution upon the death of a substitute only if the request to substitute for the deceased substitute is filed within the one-year period from the date of the claimant’s death, not the date of the substitute’s death. This provision comes directly from the Act (38 U.S.C. 5121A(a)(1)), which PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 authorizes a request to substitute to be filed not later than 1 year after the date of the death of the claimant, but does not authorize substitution outside of this 1-year period. Amendments to Part 14 Representation of Substitutes The Act does not address the representation of substitutes by attorneys, claims agents, veterans service organization representatives, or other individuals. However, we propose to revise VA’s regulations governing representation of VA claimants to clarify that the same rules that would apply to a claimant apply to a substitute. Specifically, we propose to amend 38 CFR 14.630, ‘‘Authorization for a particular claim,’’ by adding a new paragraph (e), to explain that a person authorized to represent a claimant on a one-time basis pursuant to § 14.630 may also represent the substitute with respect to that claim upon the claimant’s death as long as a new VA Form 21–22a, ‘‘Appointment of Individual as Claimant’s Representative,’’ is filed. Proposed § 14.630(e) would permit such representation notwithstanding § 14.630(b), which authorizes representation on a ‘‘one time only’’ basis, because the substitute will be processing the same claim to completion. Similarly, we propose to amend § 14.631 by adding a new paragraph (g), to clarify that an attorney, claims agent, or veterans service organization representative may represent a substitute only if a new VA Form 21– 22, ‘‘Appointment of Veterans Service Organization as Claimant’s Representative,’’ or VA Form 21–22a, ‘‘Appointment of Individual as Claimant’s Representative,’’ signed by the substitute is filed. In other words, in no case will the representative of the deceased claimant be permitted to represent the substitute without the filing of a new VA Form 21–22 or VA Form 21–22a signed by the substitute to authorize such representation. In addition, if the substitute wants the representation of a person under § 14.630(a), a statement signed by the person and the substitute that no compensation will be charged or paid for the services would be required. Amendments to Part 20 Adjudications Before the Board We propose to amend 38 CFR 20.900 by adding new paragraph (a)(2) stating, ‘‘Cases returned to the Board following the grant of a substitution request or pursuant to an appeal of a denial of a E:\FR\FM\15FEP1.SGM 15FEP1 jlentini on DSKJ8SOYB1PROD with PROPOSALS Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules substitution request assume the place on the docket that was originally held by the deceased appellant.’’ This provision ensures that substitutes in appeals that were pending before the Board when the appellant died will get the benefit of the claim’s original docket number. This proposed rule also makes a related organizational amendment to § 20.900 by designating as paragraph (a)(1) the existing provision stating that cases returned to the Board following action pursuant to remand assume their original place on the docket. This provision is currently part of paragraph (a). We also propose to amend 38 CFR 20.1106, ‘‘Rule 1106. Claim for death benefits by survivor—prior unfavorable decisions during veteran’s lifetime,’’ by adding that ‘‘[c]ases 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.’’ The inclusion of these statements is appropriate because a substitute on behalf of a veteran will be continuing a claim that was pending when the veteran died, and therefore the claim is not one for ‘‘death benefits,’’ and any issues decided must be decided with regard to the prior disposition of those issues during the veteran’s lifetime as they would have been were the veteran still alive. A person who substitutes for a death benefits claimant will be prosecuting a claim for ‘‘death benefits’’ so the rule regarding decisions without regard to any prior disposition of the issues during the veteran’s lifetime will apply as in other death benefit claims. In addition, we propose to amend § 20.1302, ‘‘Rule 1302. Death of appellant during pendency of appeal,’’ to account for section 5121A. Specifically, we propose to specify that an appeal pending before the Board when the appellant dies will be dismissed ‘‘without prejudice.’’ This amendment is intended to allow the appeal to continue following a grant of a request to substitute and to ensure that a substitute is not prejudiced by the dismissal of the appeal upon the death of the claimant. We also propose to refer to § 3.1010 to clarify that requests to substitute must be filed with the AOJ for a decision on the request to substitute in the first instance. Moreover, the proposed amendment contains a reference to § 20.900(a)(2) to clarify that, ‘‘[i]f the agency of original jurisdiction grants the request to substitute, the case will assume its original place on the VerDate Mar<15>2010 16:26 Feb 14, 2011 Jkt 223001 docket pursuant to Rule 900 (§ 20.900(a)(2) of this part).’’ We also propose to add to 38 CFR 20.1302 a paragraph (b) to specify a narrow exception to the general rule described in what would be designated as paragraph (a). Specifically, paragraph (b)(1) would permit the grant of a request to substitute by the AOJ prior to the dismissal of an appeal by the Board when the appellant had requested a hearing before the AOJ prior to death and a written request to substitute has been received at or before that hearing. In this limited context, the AOJ may make a decision on the request to substitute before the Board dismisses the appeal on account of the appellant’s death. Paragraph (b)(2) explains what happens if the AOJ grants the request to substitute: If the [AOJ] grants the request to substitute, the [Board] can then take the testimony of the substitute at a hearing held pursuant to Rule 700 et seq. (§ 20.700 et seq. of this part). If the substitute desires representation at the hearing, he or she must appoint a representative prior to the hearing pursuant to § 14.631(g) of this chapter. This proposed amendment is intended to promote efficiency in those circumstances where a hearing is scheduled to be held before the AOJ following the appellant’s death. Finally, we propose to amend 38 CFR 20.1304(b)(1), which provides the general rule applicable to a request for a change in representation, a request for a personal hearing, or the submission of additional evidence, received more than 90 days following notification of certification of an appeal and transfer of the appellate record to the Board. We propose to add to the list of items required in a motion for acceptance of such requests or evidence based on good cause ‘‘the name of any substitute claimant or appellant.’’ 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 (44 U.S.C. 3501 et seq.), no new or proposed revised collections of information are associated with this proposed rule. The information collection requirements for §§ 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); 2900– 0321(VA Form 21–22, Appointment of Veterans Service Organization as Claimant’s Representative); and 2900– PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 8671 0321 (VA Form 21–22a, Appointment of Individual as Claimant’s Representative). Regulatory Flexibility Act The Secretary hereby certifies that this proposed 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 proposed rule would directly affect only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this proposed rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. Executive Order 12866 Executive Order 12866 directs agencies to assess all 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, and other advantages; distributive impacts; and equity). The Executive Order classifies a ‘‘significant regulatory action,’’ requiring 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 the Executive Order. The economic, interagency, budgetary, legal, and policy implications of this proposed rule have been examined and it has been determined that it is not a significant regulatory action under the Executive Order. 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 E:\FR\FM\15FEP1.SGM 15FEP1 8672 Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules private sector, of $100 million or more (adjusted annually for inflation) in any 1 year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector. PART 3—AJUDICATION Catalog of Federal Domestic Assistance Numbers and Titles 1. The authority citation for part 3, Subpart A continues to read as follows: The Catalog of Federal Domestic Assistance program numbers and titles for the programs affected by this document are 64.103, Life Insurance for Veterans; 64.104, Pension for NonService-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; 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 the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on January 31, 2011, 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 jlentini on DSKJ8SOYB1PROD with PROPOSALS Administrative practice and procedure, Claims, Veterans. Dated: February 8, 2011. Robert C. McFetridge, Regulation Policy and Management, Office of the General Counsel, Department of Veterans Affairs. For the reasons stated in the preamble, VA proposes to amend 38 CFR parts 3, 14, and 20 as follows: VerDate Mar<15>2010 16:26 Feb 14, 2011 Jkt 223001 Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation Authority: 38 U.S.C. 501(a), unless otherwise noted. 2. Add § 3.1010 to read as follows: § 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 § 3.1000(a) of this part (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 include the word ‘‘substitute’’ or ‘‘substitution,’’ the applicable claim number or appeal number, and 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, death pension, or dependency and indemnity compensation by an eligible person listed in 38 CFR 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, death pension, or dependency and indemnity PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 compensation may waive the right to substitute. (d) Evidence of eligibility. A person filing a request to substitute must provide evidence of eligibility to substitute. 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 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 § 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 § 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 38 CFR 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 38 CFR 3.159. VA will send notice under 38 CFR 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. E:\FR\FM\15FEP1.SGM 15FEP1 jlentini on DSKJ8SOYB1PROD with PROPOSALS Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules (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. If the agency of original jurisdiction has decided a claim before the claimant dies, but the claimant dies before filing a Notice of Disagreement, no claim or appeal is pending for purposes of this section. (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 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 VerDate Mar<15>2010 16:26 Feb 14, 2011 Jkt 223001 be established under any of the categories listed in 38 CFR 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 is pending before an agency of original jurisdiction or the Board, or an appeal of a decision on a claim is pending, 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 second substitution files a request to substitute no later than one year after the date of the claimant’s death (not the date of the substitute’s death). PART 14—LEGAL SERVICES, GENERAL COUNSEL, AND MISCELLANEOUS CLAIMS 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. 4. Amend § 14.630 by adding paragraph (e) and revising the authority citation at the end of the section to read as follows: § 14.630. claim. Authorization for a particular * * * * * (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 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 8673 the procedures of 38 CFR 14.631(g) are followed. * * * * * (Authority: 38 U.S.C. 501(a), 5121A, 5903) 5. Amend § 14.631 by adding paragraph (g) and revising the authority citation at the end of the section to read as follows: § 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 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 § 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 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 7. Amend § 20.900 by revising paragraph (a) and the authority citation at the end of the section to read as follows: § 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) Cases returned to the Board following action pursuant to a remand assume their original places on the docket. (2) Cases returned to the Board following the grant of a substitution request or pursuant to an appeal of a denial of a substitution request assume the place on the docket that was originally held by the deceased appellant. * * * * * (Authority: 38 U.S.C. 5121A, 7107, Pub. L. 103–446, § 302) Subpart L—Finality 8. Revise § 20.1106 to read as follows: E:\FR\FM\15FEP1.SGM 15FEP1 8674 Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules § 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 9. Revise § 20.1302 to read as follows: jlentini on DSKJ8SOYB1PROD with PROPOSALS § 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 § 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 (§ 20.900(a)(2) of this part). 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 (§ 20.900(a)(2) of this part). (b) Exception. (1) If a hearing request is pending pursuant to Rule 704 (§ 20.704 of this part) 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 § 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 Rule 700 et seq. (§ 20.700 et seq. of VerDate Mar<15>2010 16:26 Feb 14, 2011 Jkt 223001 this part). If the substitute desires representation at the hearing, he or she must appoint a representative prior to the hearing pursuant to § 14.631(g) of this chapter. (Authority: 38 U.S.C. 5121A, 5902, 5903, 5904, 7104, 7105, 7105A) [FR Doc. 2011–3196 Filed 2–14–11; 8:45 am] BILLING CODE 8320–01–P (Authority: 38 U.S.C. 5121A, 7104(a)) 10. Revise § 20.1304, paragraph (b)(1) introductory text and the authority citation at the end of the section to read as follows: ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 1 [FRL–9267–2] § 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. Notice of a Public Meeting: Environmental Justice Considerations for Drinking Water Regulatory Efforts * AGENCY: * * * * (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 address: Director, Management and Administration (01E), Board of Veterans’ Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. Depending upon the ruling on the motion, action will be taken as follows: * * * * * PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 Environmental Protection Agency (EPA). ACTION: Notice of meeting. The U.S. Environmental Protection Agency (EPA) is hosting a public meeting to discuss and solicit input on environmental justice considerations related to several upcoming regulatory efforts. These regulatory efforts include the long-term revisions to the Lead and Copper Rule (LCR) and the third Regulatory Determinations from the drinking water Contaminant Candidate List 3. EPA recently announced its intentions to develop drinking water regulatory actions for perchlorate and carcinogenic volatile organic compounds (VOCs). While the Agency is in the very preliminary stages of developing the regulatory efforts for perchlorate and carcinogenic VOCs, EPA plans to discuss these actions at this meeting. Environmental justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations and policies. EPA is holding this meeting to provide information to communities and an opportunity for communities to provide input on the LCR, Regulatory Determinations 3, perchlorate, and carcinogenic VOCs rulemaking efforts. Date and Location: The public meeting will be held in Washington, DC on Thursday, March 3, 2011, from 10 a.m. to 5 p.m., Eastern Daylight Time (EDT). Participants will be notified of the specific meeting room upon confirmation of registration. Teleconferencing will be available for individuals unable to attend the meeting in person. FOR FURTHER INFORMATION CONTACT: For general information about this meeting, contact Lameka Smith, Standards and Risk Management Division, Office of Ground Water and Drinking Water; by SUMMARY: E:\FR\FM\15FEP1.SGM 15FEP1

Agencies

[Federal Register Volume 76, Number 31 (Tuesday, February 15, 2011)]
[Proposed Rules]
[Pages 8666-8674]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-3196]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 3, 14, 20

RIN 2900-AN91


Substitution in Case of Death of Claimant

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations concerning adjudication of claims, representation of 
claimants, and Board of Veterans' Appeals rules of practice. These 
amendments would implement section 212 of the Veterans' Benefits 
Improvement Act of 2008, which allows an eligible survivor to 
substitute for a deceased claimant in order to complete the processing 
of the deceased claimant's claim. The intended effect of these 
amendments is to clarify the rules and procedures for those situations 
in which substitution is authorized. Under section 212, if a claimant 
dies while his or her claim or appeal is pending before VA, a survivor 
who would be eligible for accrued benefits under existing statutory 
authority may, not later than one year after the death of the claimant, 
request to be substituted for the claimant for the purposes of 
processing the claim or appeal to completion. Accordingly, after 
substitution, VA will continue to process the claim or appeal as if the 
claimant had not died. These amendments clarify the following matters: 
Eligibility for substitution, how an eligible survivor makes a request 
to substitute, how VA responds to requests to substitute, a 
substitute's rights in adjudication, limitations related to 
substitution, order of preference among eligible survivors, 
representation of substitutes, and procedures for substitution when a 
claim is before the Board of Veterans' Appeals.

DATES: Comments must be received by VA on or before April 18, 2011.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Regulations 
Management (02REG), Department of Veterans Affairs, 810 Vermont Ave., 
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. 
(This is not a toll free number.) Comments should indicate that they 
are submitted in response to ``RIN 2900-AN91--Substitution in Case of 
Death of Claimant.'' Copies of comments received will be available for 
public inspection in the Office of Regulation Policy and Management, 
Room 1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through 
Friday (except holidays). Please call (202) 461-4902 for an 
appointment. (This is not a toll free number.) In addition, during the 
comment period, comments may be viewed online through the Federal 
Docket Management System (FDMS) at http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Robert Watkins, Department of Veterans 
Affairs, Veterans Benefits Administration, Compensation and Pension 
Service, Regulation Staff (211D), 810 Vermont Avenue, NW., Washington, 
DC 20420, 202-461-9214. (This is not a toll-free number.)

[[Page 8667]]


SUPPLEMENTARY INFORMATION: Section 212 of the Veterans' Benefits 
Improvement Act of 2008, Public Law 110-389 (the Act), added to title 
38, United States Code, a provision codified at 38 U.S.C. 5121A. It 
authorizes a living person eligible to receive accrued benefits under 
38 U.S.C. 5121(a) to substitute for a deceased claimant in order to 
process a claim or appeal pending before VA to completion. Section 
5121A permits, upon timely request, a person who would be eligible for 
accrued benefits under 38 U.S.C. 5121(a) to continue a claim that was 
pending when the claimant died. The legislative intent in enacting 
section 212 was to change the then-state of the law, which permitted 
eligible survivors to file an accrued benefits claim after the death of 
a claimant, but made no provision for substitution. See 154 Cong. Rec. 
S10447 (daily ed. Oct. 2, 2008) (Joint Explanatory Statement on 
Amendment to Senate Bill, S. 3023, as Amended) (``Currently * * * 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.''); 38 U.S.C. 5121. A successful accrued 
benefits claim can only result in payment of those benefits ``to which 
[the claimant] was entitled at death under existing ratings or 
decisions or those based on evidence in the file at date of death * * * 
and due and unpaid.'' 38 U.S.C. 5121. By permitting substitution, 
Congress created a new procedural right and expanded the nature of 
benefits that eligible survivors can secure following a claimant's 
death. The availability of substitution means that survivors are no 
longer limited to those benefits to which the claimant was entitled at 
death under existing ratings or decisions or those based on evidence in 
the file at date of death. However, the types of benefits payable to a 
survivor--periodic monetary benefits (other than insurance and 
servicemembers' indemnity)--remain the same.
    To implement the Act, VA proposes to add to 38 CFR part 3, subpart 
A, a new Sec.  3.1010 to clarify adjudication procedures affected by 
section 5121A. Because the Act inserted section 5121A immediately after 
section 5121 in title 38, U.S. Code, and otherwise closely links the 
two statutes, VA proposes to insert 5121A's implementing regulation, 
Sec.  3.1010, immediately after section 5121's existing implementing 
regulations at Sec. Sec.  3.1000-3.1009 (referred to as the ``accrued 
benefits regulations''). Further, VA proposes to generally model 
Sec. Sec.  3.1010 after the accrued benefits regulations to the extent 
appropriate. In addition, VA proposes to add to and amend portions of 
part 14 to address the representation of substitutes before VA. 
Finally, VA proposes to add to and amend portions of 38 CFR part 20 to 
clarify procedures before the Board of Veterans' Appeals (Board) 
affected by section 5121A.
    Section 5121A(a)(3) provides: ``Substitution under this subsection 
shall be in accordance with such regulations as the Secretary may 
prescribe.'' In addition, section 5121A(a)(2) states, ``Any person 
seeking to be substituted for the claimant shall present evidence of 
the right to claim such status within such time as prescribed by the 
Secretary in regulations.'' Finally, pursuant to 38 U.S.C. 501(a), the 
Secretary possess the authority to prescribe all the rules and 
regulations that are necessary or appropriate to carry out the laws 
administered by VA and that are consistent with those laws. Pursuant to 
the authority granted to the Secretary under sections 501(a) and 5121A, 
VA proposes the addition of Sec.  3.1010 and the amendment of 
Sec. Sec.  14.630, 14.631, 20.900, 20.1106, 20.1302, and 20.1304. With 
respect to each of these amendments, VA proposes to add a citation to 
38 U.S.C. 5121A in the existing authority citation. The following 
sections of this SUPPLEMENTARY INFORMATION discuss in more detail the 
proposed changes to parts 3, 14, and 20.

Amendments to Part 3

Eligibility for and Scope of Substitution

    Proposed Sec.  3.1010(a) would set forth the eligibility criteria 
for substitution. In accordance with the Act (38 U.S.C. 5121A(a)(1)), 
the proposed rule states that, if a claimant dies on or after the 
effective date of the Act--October 10, 2008--then a person who would be 
eligible to receive accrued benefits under Sec.  3.1000(a) of the 
accrued benefits regulations may request to become a substitute for the 
deceased claimant in a claim for periodic monetary benefits (other than 
insurance and servicemen's indemnity) under laws administered by the 
Secretary, or an appeal of a decision with respect to such a claim that 
was pending, when the claimant died. The ``claimant'' is in most 
circumstances a veteran claiming benefits based upon his or her own 
service. However, the ``claimant'' could also be a veteran's surviving 
spouse, the veteran's child, or a person receiving an apportioned share 
of a veteran's benefits, if such person were claiming benefits based on 
their original entitlement, rather than the entitlement of another 
person.
    Proposed Sec.  3.1010(a) would also describe the scope of 
substitution. Consistent with the Act (38 U.S.C. 5121A(a)(1)), Sec.  
3.1010(a) would state, ``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.''

Requests To Substitute and Determinations

    Proposed Sec.  3.1010(b) would describe the time and place for 
filing a request to substitute. Consistent with the Act (38 U.S.C. 
5121A(a)(1)), Sec.  3.1010(b) would require that a person desiring to 
substitute for a deceased claimant file a request to substitute ``no 
later than one year after the claimant's death.'' Proposed Sec.  
3.1010(b) would also require that all requests to substitute be filed 
with the agency of original jurisdiction (AOJ) for a decision on the 
request to substitute in the first instance. Similarly, proposed Sec.  
3.1010(e), ``Decisions on substitution requests,'' would specify that 
the AOJ ``will decide in the first instance all requests to substitute, 
including any request to substitute in an appeal pending before the 
Board.'' These provisions would clarify that, if a claimant dies while 
his or her appeal is pending before the Board, a person seeking to 
substitute must file a request to substitute with the AOJ in order to 
receive an initial decision on a request to substitute. Pursuant to 
proposed Sec.  3.1010(g)(1)(ii), an appeal would be 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. Once the Board issues its final decision on an 
appeal, the appeal is not pending 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.'' As explained in more 
detail below, this procedure is consistent with the Board's 
jurisdictional authority, 38 U.S.C. 7104(a), which provides that 
``[a]ll questions in a matter which * * * is subject to decision by the 
Secretary shall be subject to one review on appeal to the Secretary. 
Final decisions on such appeals shall be made by the Board.'' See 38 
CFR 20.101(a) (emphasis added). Because neither the Act nor any other 
legislation amended the Board's jurisdictional statute at 38 U.S.C. 
7104(a), the Board lacks original jurisdiction to decide a request to 
substitute in the first instance, but, as

[[Page 8668]]

discussed below in this preamble, may hear an appeal of a denial of a 
request to substitute.
    The Board's role in VA's adjudication system is generally limited 
to providing appellate review of adverse decisions made by an AOJ. With 
very limited exceptions, such as motions to revise a final Board 
decision based upon clear and unmistakable error, the Board does not 
have original jurisdiction over matters subject to a decision by the 
Secretary. Because the Board is jurisdictionally limited to deciding 
appeals, the Board cannot entertain requests to substitute in the first 
instance, as this would be outside the Board's jurisdiction and deprive 
putative substitutes of their statutory right to ``one review on appeal 
to the Secretary'' in the event of a Board denial of a request to 
substitute. Under the current statutory scheme, an AOJ decision on a 
request to substitute is itself appealable to the Board. Accordingly, 
under proposed Sec.  3.1010(e)(2), ``Appeals,'' the denial of a request 
to substitute may be appealed to the Board. For these reasons, the AOJ, 
not the Board, must decide these requests in the first instance.
    Notably, the Act (38 U.S.C. 5121A(a)(2)) contemplates the 
submission of evidence to establish eligibility for substitution, 
specifically providing that ``[a]ny person seeking to be substituted 
for the claimant shall present evidence of the right to claim such 
status.'' (emphasis added). (Proposed Sec.  3.1010(d), discussed below 
in this preamble, would address the submission of evidence in support 
of a request to substitute.) The United States Court of Appeals for the 
Federal Circuit has made clear that, except as otherwise specifically 
provided by law, the Board generally cannot develop and consider 
evidence in the first instance. Initial consideration of evidence, 
including that relating to eligibility for substitution, must be 
undertaken by the AOJ. See Disabled Am. Veterans v. Sec'y of Veterans 
Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003) (DAV) (``[w]hen the Board 
obtains evidence that was not considered by the AOJ * * * an appellant 
has no means to obtain `one review on appeal to the Secretary,' because 
the Board is the only appellate tribunal under the Secretary''). This 
is another reason to have all requests to substitute be decided by an 
AOJ in the first instance.
    Proposed Sec.  3.1010 would contain no provision allowing a person 
requesting to substitute the option of waiving his or her right to one 
review on appeal. In DAV, the Federal Circuit implicitly approved of 
waiver by a claimant of the consideration of evidence by the AOJ in the 
first instance. 327 F.3d at 1341. However, it would be contrary to VA's 
statutory adjudication authority to employ the use of waivers in the 
context of a decision on a request to substitute. An AOJ decision on a 
request to substitute is an appealable decision under to 38 U.S.C. 
7104(a). See, e.g., 20 CFR 19.28 (establishing as an appealable issue 
the question of whether a notice of disagreement is adequate). A 
significant difference exists between waiving the AOJ's consideration 
of certain evidence regarding a claim and waiving the AOJ's 
consideration of an appealable issue in the first instance, 
particularly because waiver would require original jurisdiction that 
the Board lacks. Nothing in DAV suggests that the Board has the 
authority to adjudicate an appealable issue in the first instance. 
Rather, DAV stands for the proposition that the Board may consider 
newly obtained evidence that was not first considered by the AOJ as 
part of its adjudication of an issue if a valid waiver is obtained from 
the appellant. In the context of a request to substitute, the Board 
would not be soliciting a waiver for purposes of considering evidence 
regarding eligibility to substitute, which would be a situation 
analogous to the discussion of waiver in DAV. For these reasons, 
proposed Sec.  3.1010 would make no provision for waiver of AOJ 
consideration of a request to substitute in the first instance.
    Proposed Sec.  3.1010(e)(3) would define the term ``joint class'' 
and provide the joint class order of preference rules for substitution. 
Specifically, under Sec.  3.1010(e)(3), ``Joint class representative,'' 
a ``joint class'' would mean ``a group of two or more persons eligible 
to substitute under the same priority group under 38 CFR 3.1000(a)(1) 
through (a)(5), e.g., two or more surviving children.'' As explained 
above, Congress closely linked section 5121A and section 5121. Also, 
the Act (38 U.S.C. 5121A(b)) specifically provides the limitation that 
``[t]hose who are eligible to make a claim under this section shall be 
determined in accordance with section 5121.'' Thus, it is consistent 
with the Act to apply the eligibility standards in the accrued benefits 
regulations to the substitution regulations. The proposed definition of 
``joint class'' would simply describe the eligibility categories 
enumerated in the accrued benefits statute at 38 U.S.C. 5121(a) that 
could contain multiple persons, such as ``[t]he veteran's children'' 
and ``[t]he veteran's dependent parents.'' Although the phrase ``joint 
class'' is used in the accrued benefits regulations at 38 CFR 
3.1000(c)(2), it is not described in further detail. For the sake of 
clarity, the proposed rule would include a definition of ``joint 
class.'' We propose in Sec.  3.1010(e)(3)(ii) that ``only one person of 
the joint class may be a substitute at any one time,'' and ``[t]he 
first person in the joint class to file a request to substitute that is 
granted will be the substitute representing the joint class.'' This is 
consistent with the Act (38 U.S.C. 5121A(a)), which authorizes only ``a 
person'' to substitute.

Format of Request To Substitute

    Proposed Sec.  3.1010(c), ``Request format,'' would specify the 
required format for a request to substitute. Under proposed Sec.  
3.1010(c), a request to substitute would be required to be submitted in 
writing. Further, a request to substitute would be required to contain, 
at a minimum, the word ``substitute'' or ``substitution,'' the 
applicable claim number or appeal number, and the names of the deceased 
claimant and the person requesting to substitute. Alternatively, under 
proposed Sec.  3.1010(c)(2), a claim for accrued benefits, death 
pension, or dependency and indemnity compensation by an eligible person 
listed in 38 CFR 3.1000(a)(1) through (5) would be 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 AOJ or the Board when the claimant died. 
This provision would be consistent with VA's current treatment of 
claims for death benefits as interchangeable. Specifically, 38 CFR 
3.152(b)(1) requires that ``[a] claim by a surviving spouse or child 
for [death] compensation or dependency and indemnity compensation * * * 
be considered to be a claim for death pension and accrued benefits, and 
a claim by a surviving spouse or child for death pension * * * be 
considered to be a claim for death compensation or dependency and 
indemnity compensation and accrued benefits.''
    Although under the proposed rule VA would treat qualifying death 
benefits claims as requests to substitute, VA anticipates that not all 
persons filing a claim for death benefits will wish to substitute for a 
deceased claimant. Therefore, VA would provide an opportunity for a 
person to waive the right to substitute when he or she has filed a 
claim for accrued benefits, death pension, or dependency and indemnity

[[Page 8669]]

compensation, which VA would otherwise deem a request to substitute.

Evidence of Eligibility To Substitute

    Proposed Sec.  3.1010(d), ``Evidence of eligibility,'' would 
address the submission of evidence in support of a request to 
substitute. Consistent with the Act (38 U.S.C. 5121A(a)(2)), proposed 
Sec.  3.1010(d) would establish the time period in which a person 
seeking to be substituted for a deceased claimant must present evidence 
of the right to claim such status. As an initial matter, a person 
desiring to substitute would have to file a request to substitute no 
later than one year after the claimant's death, pursuant to the Act (38 
U.S.C. 5121A(a)(1)) and as would be required under proposed Sec.  
3.1010(b). Under proposed Sec.  3.1010(d), if the request to substitute 
does not include sufficient evidence of the person's eligibility to 
substitute, then VA would send notification to the person who filed the 
request. VA would not provide notification if the person filing the 
request could not be an eligible person. For example, VA would not send 
notification if the person who filed the request claimed to be an 
individual outside the categories of eligible persons under 38 CFR 
3.1000(a)(1) through (5).
    Pursuant to proposed Sec.  3.1010(d)(1) through (3), a person who 
filed a request to substitute without necessary evidence of eligibility 
would be notified: ``(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 
the claimant's death, whichever is later, or VA will deny the request 
to substitute.'' Thus, under proposed Sec.  3.1010(d)(1), a person who 
does not provide required evidence of eligibility to substitute with 
their request to substitute would be given 60 days from the date of 
VA's notification or until the expiration of one year after the 
claimant's death, whichever is later, to provide necessary evidence of 
eligibility. The later of 60 days from the date of notification or one 
year from the date of the claimant's death is a reasonable time in 
which to submit evidence of eligibility to substitute, especially 
because VA would have notified the person who filed the request of the 
evidence required to demonstrate eligibility.
    The accrued benefits regulation at Sec.  3.1000(c)(1)(iii) gives an 
accrued benefits claimant 1 year from the date of VA's notification of 
an incomplete application for accrued benefits in which to provide the 
necessary eligibility evidence. However, this 1-year time period from 
the date of notification is mandated by the accrued benefits statute at 
38 U.S.C. 5121(c). In contrast, under the Act (38 U.S.C. 5121A(a)(2)), 
Congress granted the Secretary the authority to establish the time 
period for the submission of evidence of eligibility to substitute with 
the intent of ensuring the timely submission of evidence. The sooner 
the AOJ receives evidence of eligibility to substitute, the sooner an 
eligible person may become a substitute and begin to process to 
completion the claim or appeal that was pending. Such timeliness is 
less significant under the accrued benefits statute (38 U.S.C. 5121), 
which does not provide for the completion of any pending claim or 
appeal. Further, proposed Sec.  3.1010 would be consistent with the Act 
(38 U.S.C. 5121A) because in no event would a person requesting to 
substitute be given less than 1 year from the date of the claimant's 
death in which to complete the request to substitute.

Adjudications Before the AOJ

    Proposed Sec.  3.1010(f) would clarify the rules governing an 
adjudication before the AOJ of a claim involving a substitute. As noted 
in proposed Sec.  3.1010(f)(5), the rules governing an appeal before 
the Board involving a substitute are specifically addressed in parts 19 
and 20, the proposed amendments to which are discussed below in this 
preamble.
    As a general matter, all part 3 regulations that would have been 
applicable to the claimant had the claimant not died would be 
applicable to the substitute under the proposed regulations, with some 
exceptions predicated on the fact that the claimant has died. Under 
proposed Sec.  3.1010(f)(1), VA would send to a substitute notice under 
38 CFR 3.159(b) only if the required notice was not sent to the 
deceased claimant or if the notice sent to the deceased claimant was 
inadequate. Section 3.159(b) governs VA's duty to notify claimants of 
information or evidence that is necessary to substantiate a claim and 
is the implementing regulation for the notification duty imposed on VA 
by the Veterans Claims Assistance Act (VCAA) of 2000 (Pub. L. 106-475), 
codified at 38 U.S.C. 5103. VA recognizes that in some circumstances a 
claimant would have been provided this VCAA notice under Sec.  3.159(b) 
prior to death. In such cases, VA will send notice to a substitute only 
if notice was not previously sent or was inadequate because a 
substitute is generally considered to ``stand in the shoes'' of the 
deceased claimant.
    Under proposed Sec.  3.1010(f)(2), a substitute would be expressly 
prohibited from adding new issues to or expanding the existing claim. 
However, a substitute would be permitted to raise new theories of 
entitlement as to the claim. This limitation would be consistent with 
the Act (38 U.S.C. 5121A(a)(1)) because the Act contemplates that a 
substitute will replace a deceased claimant for the purpose of 
processing a claim or appeal that was pending to completion. However, 
the Act does not authorize a person to add new issues to a claim, which 
would be tantamount to filing a new claim on behalf of a deceased 
claimant. For example, if a veteran had a claim pending regarding the 
single issue of service connection for a knee injury, a substitute 
could raise a previously unraised theory of entitlement, such as 
secondary service connection. However, the substitute could not add the 
issue of or file a claim for service connection for post-traumatic 
stress disorder.
    Although a substitute could not add new issues to or expand a 
claim, under proposed Sec.  3.1010(f)(3), a substitute could submit 
evidence and generally would have the same rights regarding hearings, 
representation, and appeals as would have applied to the claimant had 
the claimant not died.

Limitations on Substitution

    Proposed Sec.  3.1010(g), ``Limitations on substitution,'' would 
address the limitations that apply to substitution. These limitations 
would help to further clarify the scope of substitution and would be 
consistent with the language of the Act. Section 3.1010(g)(1) would 
clarify when a person may substitute for a deceased claimant by 
specifying that a claim or appeal must be undecided to be pending for 
purposes of substitution. Specifically, a person could substitute if a 
claim has been filed with but has not been decided by the AOJ before 
the claimant's death, or if a notice of disagreement has been filed to 
initiate an appeal to the Board, but the Board has not decided the 
appeal before the claimant's death. In other words, a person could not 
substitute for a ``claimant'' who dies without first filing a claim or 
initiating an appeal, even if the substitute were to file a request to 
substitute during the appeal period.
    VA recognizes that the limitation in proposed Sec.  3.1010(g)(1) 
may appear to conflict with VA's definitions of ``pending claim'' and 
``finally adjudicated claim'' in 38 CFR 3.160, ``Status of claims.'' 
Pursuant to

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paragraphs (c) and (d) of Sec.  3.160, a ``pending claim'' is one that 
has not been ``finally adjudicated,'' and a ``finally adjudicated 
claim'' means ``[a]n application, formal or informal, which has been 
allowed or disallowed by the agency of original jurisdiction, the 
action having become final by the expiration of 1 year after the date 
of notice of an award or disallowance, or by denial on appellate 
review, whichever is the earlier.'' This means that a decided claim for 
which the 1-year appeal period has not yet expired is considered a 
``pending claim'' unless the Board has already decided the appeal. 
However, the Act does not use the term ``pending claim'' or ``finally 
adjudicated claim,'' and VA does not use these terms in the proposed 
rule. VA interprets the phrase in the Act ``a claim * * * or an appeal 
* * * is pending'' to mean that a claim or appeal must have been 
initiated by the claimant before death in order for an eligible person 
to substitute for the claimant upon the claimant's death. In the 
context of a living claimant, a claim must be a ``pending claim'' until 
the expiration of the appeal period because that claimant could 
initiate an appeal at any time during that period. Also, a claim must 
be a ``pending claim'' even if appealed to the Board and not yet 
decided by the Board because of the possibility of the Board remanding 
the claim for additional development. However, when a claimant dies 
before initiating a claim or appeal, substitution is not available 
because a person may not substitute for the purpose of initiating a 
claim or an appeal.
    As explained above, the Act authorizes VA to pay benefits of a 
different nature than allowed by the accrued benefits statute, i.e., 
benefits not limited to those to which the claimant was entitled at 
death under existing ratings or decisions or those based on evidence in 
the file at date of death and due and unpaid. Proposed Sec.  
3.1010(g)(2) would further clarify the nature of benefits payable under 
section 5121A. First, paragraph (g)(2) would clarify that VA is 
authorized to award only past-due benefits to the substitute and other 
members of a joint class, if any. Second, paragraph (g)(2) would 
specify that past-due benefits are those 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. See 38 CFR 3.500(g). In other words, a substitute 
would be eligible to receive past-due benefits for the period between 
the effective date of the award and the last day of the month preceding 
the claimant's death.
    Proposed paragraphs (g)(3) and (g)(4) would parallel provisions in 
the accrued benefits statute and implementing regulations. As discussed 
previously, parallelism between the proposed substitution regulations 
and the accrued benefits regulations is generally appropriate given 
that Congress closely linked the two statutes together. Proposed Sec.  
3.1010(g)(3) would describe when the amount of benefits awarded to a 
substitute and members of a joint class, if any, is limited to the 
amount of the expense of last sickness and burial. This provision would 
simply repeat the limitation under the accrued benefits statute at 38 
U.S.C. 5121(a)(6), implemented at 38 CFR 3.1000(a)(5), which limits the 
amount of accrued benefits payable when entitlement cannot be 
established under categories (a)(1) through (a)(5) of that section. 
Because the Act (38 U.S.C. 5121A(a)(1)) defines eligibility to 
substitute in terms of the eligibility criteria under section 5121(a), 
the benefit amount limitation inherent in the eligibility provisions of 
section 5121(a)(6) applies to a person substituted on the basis of 
having borne the expense of last sickness and burial.
    Proposed paragraph (g)(4) would mirror the accrued benefits 
regulation at Sec.  3.1000(c)(2) and clarify that, if an eligible 
person in a priority category fails or waives the right to file a 
request to substitute, persons of a lower category are not permitted to 
substitute. Similarly, under proposed paragraph (g)(4), failure or 
waiver of the right to file a request to substitute by a member of a 
joint class would not serve to increase the amount payable to other 
persons in the class.
    Finally, proposed paragraph (g)(5) would explain when subsequent 
substitutions are permitted upon the death of a substitute. Proposed 
paragraph (g)(5) would permit substitution for a deceased substitute 
only under the same circumstances in which substitution would have been 
permitted for a deceased claimant. In other words, substitution for a 
substitute would be permitted only if the substitute died while a claim 
was pending before the AOJ or the Board or an appeal of a decision on a 
claim was pending before the AOJ or the Board. Further, proposed 
paragraph (g)(5) would allow substitution upon the death of a 
substitute only if the request to substitute for the deceased 
substitute is filed within the one-year period from the date of the 
claimant's death, not the date of the substitute's death. This 
provision comes directly from the Act (38 U.S.C. 5121A(a)(1)), which 
authorizes a request to substitute to be filed not later than 1 year 
after the date of the death of the claimant, but does not authorize 
substitution outside of this 1-year period.

Amendments to Part 14

Representation of Substitutes

    The Act does not address the representation of substitutes by 
attorneys, claims agents, veterans service organization 
representatives, or other individuals. However, we propose to revise 
VA's regulations governing representation of VA claimants to clarify 
that the same rules that would apply to a claimant apply to a 
substitute. Specifically, we propose to amend 38 CFR 14.630, 
``Authorization for a particular claim,'' by adding a new paragraph 
(e), to explain that a person authorized to represent a claimant on a 
one-time basis pursuant to Sec.  14.630 may also represent the 
substitute with respect to that claim upon the claimant's death as long 
as a new VA Form 21-22a, ``Appointment of Individual as Claimant's 
Representative,'' is filed. Proposed Sec.  14.630(e) would permit such 
representation notwithstanding Sec.  14.630(b), which authorizes 
representation on a ``one time only'' basis, because the substitute 
will be processing the same claim to completion.
    Similarly, we propose to amend Sec.  14.631 by adding a new 
paragraph (g), to clarify that an attorney, claims agent, or veterans 
service organization representative may represent a substitute only if 
a new VA Form 21-22, ``Appointment of Veterans Service Organization as 
Claimant's Representative,'' or VA Form 21-22a, ``Appointment of 
Individual as Claimant's Representative,'' signed by the substitute is 
filed. In other words, in no case will the representative of the 
deceased claimant be permitted to represent the substitute without the 
filing of a new VA Form 21-22 or VA Form 21-22a signed by the 
substitute to authorize such representation. In addition, if the 
substitute wants the representation of a person under Sec.  14.630(a), 
a statement signed by the person and the substitute that no 
compensation will be charged or paid for the services would be 
required.

Amendments to Part 20

Adjudications Before the Board

    We propose to amend 38 CFR 20.900 by adding new paragraph (a)(2) 
stating, ``Cases returned to the Board following the grant of a 
substitution request or pursuant to an appeal of a denial of a

[[Page 8671]]

substitution request assume the place on the docket that was originally 
held by the deceased appellant.'' This provision ensures that 
substitutes in appeals that were pending before the Board when the 
appellant died will get the benefit of the claim's original docket 
number. This proposed rule also makes a related organizational 
amendment to Sec.  20.900 by designating as paragraph (a)(1) the 
existing provision stating that cases returned to the Board following 
action pursuant to remand assume their original place on the docket. 
This provision is currently part of paragraph (a).
    We also propose to amend 38 CFR 20.1106, ``Rule 1106. Claim for 
death benefits by survivor--prior unfavorable decisions during 
veteran's lifetime,'' by adding that ``[c]ases 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.'' 
The inclusion of these statements is appropriate because a substitute 
on behalf of a veteran will be continuing a claim that was pending when 
the veteran died, and therefore the claim is not one for ``death 
benefits,'' and any issues decided must be decided with regard to the 
prior disposition of those issues during the veteran's lifetime as they 
would have been were the veteran still alive. A person who substitutes 
for a death benefits claimant will be prosecuting a claim for ``death 
benefits'' so the rule regarding decisions without regard to any prior 
disposition of the issues during the veteran's lifetime will apply as 
in other death benefit claims.
    In addition, we propose to amend Sec.  20.1302, ``Rule 1302. Death 
of appellant during pendency of appeal,'' to account for section 5121A. 
Specifically, we propose to specify that an appeal pending before the 
Board when the appellant dies will be dismissed ``without prejudice.'' 
This amendment is intended to allow the appeal to continue following a 
grant of a request to substitute and to ensure that a substitute is not 
prejudiced by the dismissal of the appeal upon the death of the 
claimant. We also propose to refer to Sec.  3.1010 to clarify that 
requests to substitute must be filed with the AOJ for a decision on the 
request to substitute in the first instance. Moreover, the proposed 
amendment contains a reference to Sec.  20.900(a)(2) to clarify that, 
``[i]f 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) of this part).''
    We also propose to add to 38 CFR 20.1302 a paragraph (b) to specify 
a narrow exception to the general rule described in what would be 
designated as paragraph (a). Specifically, paragraph (b)(1) would 
permit the grant of a request to substitute by the AOJ prior to the 
dismissal of an appeal by the Board when the appellant had requested a 
hearing before the AOJ prior to death and a written request to 
substitute has been received at or before that hearing. In this limited 
context, the AOJ may make a decision on the request to substitute 
before the Board dismisses the appeal on account of the appellant's 
death. Paragraph (b)(2) explains what happens if the AOJ grants the 
request to substitute:

    If the [AOJ] grants the request to substitute, the [Board] can 
then take the testimony of the substitute at a hearing held pursuant 
to Rule 700 et seq. (Sec.  20.700 et seq. of this part). 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.

This proposed amendment is intended to promote efficiency in those 
circumstances where a hearing is scheduled to be held before the AOJ 
following the appellant's death.
    Finally, we propose to amend 38 CFR 20.1304(b)(1), which provides 
the general rule applicable to a request for a change in 
representation, a request for a personal hearing, or the submission of 
additional evidence, received more than 90 days following notification 
of certification of an appeal and transfer of the appellate record to 
the Board. We propose to add to the list of items required in a motion 
for acceptance of such requests or evidence based on good cause ``the 
name of any substitute claimant or appellant.''

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 (44 U.S.C. 3501 et seq.), no 
new or proposed revised collections of information are associated with 
this proposed 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); 2900-0321(VA Form 21-22, Appointment 
of Veterans Service Organization as Claimant's Representative); and 
2900-0321 (VA Form 21-22a, Appointment of Individual as Claimant's 
Representative).

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed 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 proposed rule would directly affect only 
individuals and will not directly affect small entities. Therefore, 
pursuant to 5 U.S.C. 605(b), this proposed rule is exempt from the 
initial and final regulatory flexibility analysis requirements of 
sections 603 and 604.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all 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, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring 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 the Executive Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this proposed rule have been examined and it has been 
determined that it is not a significant regulatory action under the 
Executive Order.

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

[[Page 8672]]

private sector, of $100 million or more (adjusted annually for 
inflation) in any 1 year. This proposed rule would have no such effect 
on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program 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; 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 the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. John R. 
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this 
document on January 31, 2011, 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: February 8, 2011.
Robert C. McFetridge,
Regulation Policy and Management, Office of the General Counsel, 
Department of Veterans Affairs.

    For the reasons stated in the preamble, VA proposes to amend 38 CFR 
parts 3, 14, and 20 as follows:

PART 3--AJUDICATION

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

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

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

    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) of this part 
(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 include the word 
``substitute'' or ``substitution,'' the applicable claim number or 
appeal number, and 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, death pension, or dependency and indemnity 
compensation by an eligible person listed in 38 CFR 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, death pension, or 
dependency and indemnity compensation may waive the right to 
substitute.
    (d) Evidence of eligibility. A person filing a request to 
substitute must provide evidence of eligibility to substitute. 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 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 38 CFR 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 38 CFR 3.159. VA will send notice under 38 CFR 
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.

[[Page 8673]]

    (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. If the agency of original 
jurisdiction has decided a claim before the claimant dies, but the 
claimant dies before filing a Notice of Disagreement, no claim or 
appeal is pending for purposes of this section.
    (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 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 38 CFR 
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 is 
pending before an agency of original jurisdiction or the Board, or an 
appeal of a decision on a claim is pending, 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 second 
substitution files a request to substitute no later than one year after 
the date of the claimant's death (not the date of the substitute's 
death).

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

    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.

    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 38 CFR 14.631(g) are followed.
* * * * *

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


    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 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

    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

    7. Amend Sec.  20.900 by revising paragraph (a) and the authority 
citation at the end of the section to 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) Cases returned to the Board following action pursuant to a 
remand assume their original places on the docket.
    (2) Cases returned to the Board following the grant of a 
substitution request or pursuant to an appeal of a denial of a 
substitution request assume the place on the docket that was originally 
held by the deceased appellant.
* * * * *

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

Subpart L--Finality

    8. Revise Sec.  20.1106 to read as follows:

[[Page 8674]]

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

    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) of this 
part). 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) of this part).
    (b) Exception. (1) If a hearing request is pending pursuant to Rule 
704 (Sec.  20.704 of this part) 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 Rule 700 et seq. (Sec.  
20.700 et seq. of this part). 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))


    10. Revise Sec.  20.1304, 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 address: Director, Management and Administration (01E), 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. 2011-3196 Filed 2-14-11; 8:45 am]
BILLING CODE 8320-01-P