NOVA Petitions Court to Review VA Substitution Rule

More Delays, Administrative Hurdles Imposed on Vets' Dependents

Washington, D.C. – The National Organization of Veterans’ Advocates, Inc. (NOVA) has filed a Petition for Review with the U.S. Court of Appeals for the Federal Circuit over a final ruling by the Department of Veterans Affairs (VA) concerning the substitution of a dependent in pending benefits claim cases when the veteran, who is the claimant, dies.

The ruling under review, published in the Federal Register on September 5, 2014, allows a dependent eligible for accrued benefits to file a request to be substituted as the claimant in case of death for the purposes of processing the claim to completion.  The dependent must make the substitution request no later than a year after the veteran’s passing.

This is the second time that NOVA has taken legal action against VA over the substitution issue.  Its previous lawsuit took place in October 2010.  NOVA voluntarily dismissed that case in February 2011, following notice from the VA’s Office of General Counsel that publication of proposed regulations was forthcoming.  VA published its final rule nearly four years later, which are the regulations under review by the court.

NOVA’s petition calls into question the validity of procedures that an eligible dependent must follow in order to request substitution as a claimant in a case that is pending before a VA agency of original jurisdiction (AOJ) or an appeal that is pending before the Board of Veterans’ Appeals.

NOVA asserts that the Secretary’s final rule (79 Fed. Reg. 52977-52985) overreaches by requiring individuals whom VA has already recognized as dependents to seek yet another eligibility determination.  Specifically, Section 3.1010(e) of the ruling requires that all substitution claims must be re-verified by the AOJ, defined as a VA Regional Office, and nowhere else.  This includes any request to substitute in an appeal pending before the Board of Veterans’ Appeals.

“The Secretary’s rulemaking is overly broad and imposes unnecessary delays and administrative hurdles on qualified survivors following the death of a veteran,” according to Veterans Attorney Kenneth M. Carpenter, president of Carpenter Chartered and lead counsel on behalf of NOVA.

“It requires individuals, who have been previously determined to be qualifying dependents of veterans, to repeat the process of establishing dependency, causing undue burden in obtaining their substitution as appellants,” Carpenter maintains.

NOVA submits that the AOJ should not decide requests to substitute when the AOJ has already established dependency.  In particular, appeals pending before the Board, either on direct appeal or on remand from the U.S. Court of Appeals for Veterans Claims, should not return to the AOJ for a redundant eligibility determination.


Contact: Katy Whalen, Assistant Director
Tel: (202) 587-5708
National Organization of Veterans' Advocates, Inc.