Board of Veterans' Appeals: Rules of PracticeContinuation of Representation Following Death of a Claimant or Appellant

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AI87

Board of Veterans' Appeals: Rules of Practice--Continuation of

Representation Following Death of a Claimant or Appellant

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend the

Rules of Practice of the Board of Veterans' Appeals (Board) to

eliminate a rule which automatically assigns a deceased appellant's

representative to the appellant's survivor. This change is necessary

because of a court ruling which eliminates the need for such a

provision.

DATES: Comments must be received on or before December 22, 1997.

ADDRESSES: Mail or hand deliver written comments to: Director, Office

of Regulations Management (02D), Department of Veterans Affairs, 810

Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should

indicate that they are submitted in response to ``RIN 2900-AI87.'' All

written comments will be available for public inspection at the above

address in the Office of Regulations Management, Room 1158, between the

hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Chief Counsel, Board

of Veterans' Appeals, Department of Veterans Affairs, 810 Vermont

Avenue, NW, Washington, DC 20420 (202-565-5978).

SUPPLEMENTARY INFORMATION: The Board is an administrative body that

decides appeals from denials of claims for veterans' benefits.

Currently, Rule 611 (38 CFR 20.611) provides that a person or

organization properly designated to represent a claimant or appellant

will be recognized as the representative of his or her survivors for a

period of one year following the death of the claimant or appellant.

This provision was deemed necessary to ensure continuity of

representation, since Rule 1302 (38 CFR 20.1302) previously provided

that, when an appeal is pending before the Board at the time of the

appellant's death, the Board could complete its action on the issues

properly before it without application from the survivors. In Smith

(Irma) v. Brown, No. 95-898 (Vet. App. June 13, 1997), the U.S. Court

of Veterans Appeals ruled that former Rule 1302 is invalid because,

pursuant to the court's ruling in Landicho v. Brown, 7 Vet. App. 42, 47

(1994), a pending claim for compensation benefits under chapter 11 of

title 38, United States Code, does not survive the claimant's death.

Thus, when an appellant dies prior to the promulgation of the Board's

decision with regard to a compensation claim, the Board no longer has

jurisdiction of the appeal, and the appeal must be dismissed. Rule 1302

has been amended to provide that an appeal pending when the veteran

dies will be dismissed. Similarly, Rule 611 was amended to eliminate a

provision permitting a deceased appellant's representative to continue

to act with respect to any appeal pending upon the death of the

appellant.

Because there is no longer any need to provide for continuous

representation, we propose to eliminate Rule 611.

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. 601-612. This rule will affect only the processing of claims by

VA and will not affect small businesses. Therefore, pursuant to 5

U.S.C. 605(b), this proposed rule is exempt from the initial and final

regulatory flexibility analyses requirements of Secs. 603 and 604.

List of Subjects in 38 CFR Part 20

Administrative practice and procedure, Claims, Veterans.

Approved: October 8, 1997.

Hershel W. Gober,

Acting Secretary of Veterans Affairs.

For the reasons set out in the preamble, 38 CFR part 20 is proposed

to be amended as set forth below:

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

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

Authority: 38 U.S.C. 501(a).

Subpart G--Representation

Sec. 20.611 [Removed]

2. In subpart G, Sec. 20.611 is removed and reserved.

[FR Doc. 97-28058 Filed 10-22-97; 8:45 am]

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