Board of Veterans' Appeals: Rules of PracticeDeath of Appellant During Pendency of Appeal

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AI86

Board of Veterans' Appeals: Rules of Practice--Death of Appellant

During Pendency of Appeal

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Rules of Practice of the Board of

Veterans' Appeals (Board)--part of the Department of Veterans Affairs

(VA)--relating to circumstances which arise when an appellant dies

while an appeal is pending before the Board. These amendments provide

that when an appellant dies while an appeal is pending, the appeal will

be dismissed, and eliminate a provision which permitted a deceased

appellant's representative to continue to act with respect to any

appeal pending upon the death of the appellant. These changes are

necessary because of a ruling made by the United States Court of

Veterans Appeals.

DATES: Effective Date: These changes are effective June 13, 1997, the

date of the court decision which requires the changes.

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.

Death of appellant during pendency of appeal. Previously, Rule 1302

(38 CFR 20.1302) 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 this regulation is

invalid because, pursuant to its 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.

While it is clear that Rule 1302 is no longer applicable to claims

for disability compensation, we have concluded that, for purposes of

that rule, there is no meaningful distinction between disability

compensation and other claims which might come before the Board.

The Court's ruling in Landicho that compensation claims do not

survive the claimant was based in part upon the fact that payments of

disability compensation cease the last day of the month before the

veteran's death. 38 U.S.C. 5112(b)(1). We note that the same statute

applies to payments of pension (38 U.S.C. ch. 15) and dependency and

indemnity compensation (38 U.S.C. ch. 13) in the case of a payee.

Similarly, 38 U.S.C. 5113(a) provides that, in the case of educational

benefits (38 U.S.C. ch. 30, 31, 32, 34 and 35 and 10 U.S.C. ch. 106),

effective dates--including discontinuances based on a payee's death--

are to correspond, to the extent feasible, to those for disability

compensation.

The court in Landicho also found that Congress established a

procedure, under the ``accrued benefits'' provisions of 38 U.S.C. 5121,

for a qualified survivor to carry on, to a limited extent, a deceased

veteran's disability compensation claim by submitting an application

for accrued benefits within one year after the veterans' death.

Landicho, 7 Vet. App. at 47. Similarly, we note that the law provides

these same ``accrued benefit'' rights to the same qualified survivors

of all payees who die entitled to periodic benefits which remain

unpaid.

Finally, we note the general rule that a cause of action created by

statute generally does not survive unless its survival is specifically

provided for in the statute itself or in another statute. 1 Am. Jur. 2d

Abatement, Survival and Revival Sec. 62 (1994). There is no survival

statute other than section 5121 for any veterans' benefit which would

come before the Board.

In sum, we can find no meaningful distinction between claims for

disability compensation and claims for other benefits which would reach

the Board with respect to survivability. Accordingly, we have amended

Rule 1302 to provide that an appeal pending before the Board of

Veterans' Appeals when the appellant dies will be dismissed.

Continuation of representation following death of a claimant or

appellant. Previously, Rule 611 (38 CFR 20.611) provided in part that

an appellant's representative may continue to act with respect to any

appeal pending upon the death of the claimant or appellant until such

time as a final decision has been promulgated by the Board of Veterans'

Appeals. In Smith (Irma) v. Brown, the Court of Veterans Appeals ruled

that this portion of Rule 611 is invalid because a pending compensation

claim does not survive the claimant's death and the Board has no

jurisdiction to decide a defunct claim.

While the Court's ruling--as with its ruling with respect to Rule

1302--is technically limited to claims for disability compensation, we

conclude, for the reasons stated above, that the ruling should apply to

all matters which come before the Board. Accordingly, we have amended

Rule 611 to delete the invalid sentence.

We have also modified the ``authority'' citations in each rule to

include a reference to the court decision. 38 U.S.C. 501(b).

This final rule concerns an interpretive rule and also concerns

agency policy, procedure or practice. Consequently, pursuant to 5

U.S.C. 553, the final rule is exempt from notice and comment

requirements.

The Secretary hereby certifies that this final rule will not have a

significant economic impact on a substantial number of small entities

as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-

612. This rule will affect only claims processing by VA and will not

affect small businesses. Therefore, pursuant to 5 U.S.C. 605(b), this

final rule is exempt from the initial and final regulatory flexibility

analyses requirements of Secs. 603 and 604. In addition, since no

notice of proposed rule making is required in connection with the

adoption of this final rule, no regulatory flexibility analysis is

required under the Regulatory Flexibility Act.

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 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

2. In subpart G, Sec. 20.611 is revised to read as follows:

[[Page 55170]]

Sec. 20.611 Rule 611. Continuation of representation following death

of a claimant or appellant.

A recognized organization, attorney, agent, or person 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. The provisions of

this section do not apply to any survivor who has appointed another

representative in accordance with these rules or who has indicated in

writing that he or she does not wish to be represented by the

claimant's or appellant's representative. Written notice that a

survivor does not wish to be represented by the claimant's or

appellant's representative will be effective when received by the

agency of original jurisdiction or, if the case has been certified to

the Board for appellate review, by the Board of Veterans' Appeals.

(Authority: 38 U.S.C. 5902-5904)

Subpart N--Miscellaneous

3. In subpart N, Sec. 20.1302 is revised to read as follows:

Sec. 20.1302 Rule 1302. Death of appellant during pendency of appeal.

An appeal pending before the Board of Veterans' Appeals when the

appellant dies will be dismissed.

(Authority: 38 U.S.C. 7104(a))

[FR Doc. 97-28059 Filed 10-22-97; 8:45 am]

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