NOVA’s Press for Final Action on Substitution Ruling Pays Off

NOVA’s Press for Final Action on Substitution Ruling Pays Off
VA Issues Final Rule on RIN 2900-AN 91, September 5, 2014

-by Andrew R. Rutz, Esq., Bosley & Bratch
NOVA Member & Chair of the Regulation Comment Committee

In response to pressure first brought to bear by NOVA before the Federal Circuit in October 2010, the Department of Veterans Affairs (VA) has finally issued a final rule regarding substitution in case of death of claimant.  This action comes a full four years after NOVA counsel's initial petition for review.  During that time, NOVA leadership refused to give up the fight, reminding VA at every opportunity of its obligation to care for those who depend upon our nation's veterans, even after death.

Released on Friday, September 5, 2014, the highly anticipated final rule interprets Section 212 of the Veterans’ Benefits Improvement Act of 2008, which added 39 U.S. C. § 5121A, Substitution in Case of Death of Claimant. The new statute provided, in part, that if a claimant dies while a claim or appeal is pending:

[A] living person who would be eligible to receive accrued benefits due to the claimant under [subsection (a) of the accrued benefits statute] may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion.

NOVA solidified its standing as the premier national advocacy group for veterans' rights by submitting comments which influenced the VA’s final rule. VA agreed with NOVA’s reasoning on multiple issues. For example, VA proposed that “[s]ubstitution in an appealed case requires a Notice of Disagreement to have been filed prior to the appellant’s death.” In the final rule, VA reversed its position.   Rule 3.1010(b) provides that a “person may not substitute for a deceased claimant . . . unless the person files a request to substitute with the agency of original jurisdiction no later than one year after the claimant’s death.”

In addition, VA commented that “[w]e revised § 3.1010(g)(1)(i) to provide that, for purposes of substitution, a claim is also considered pending if, at the time of the claimant’s death, the agency of original jurisdiction has decided the claim but the claimant has not filed an NOD and the 1-year period for filing an NOD has not expired. This revision will permit a substitute to file an NOD in the same manner as a live claimant.”

The final rule, published in the Federal Register, Vol. 79, No. 172, addresses numerous issues of importance. The issues include, but are not limited to, the location for filing a request for substitution must be the agency of original jurisdiction even though the claim is pending before the BVA, and the limited authority VA has to issue final rules for substitution involving claims for which the BVA has issued a decision.

To view the final ruling, click HERE.