39 U.S. C. § 5121A, Substitution in Case of Death of Claimant

The Department of Veterans Affairs (VA) recently adopted a new rule that helps families of disabled veterans. The rule allows for family members of a veteran to substitute themselves into a claim if the veteran dies while their claim is pending.

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.

This gives family members a one year window from the time the Veteran died to the time they need to file for relief from the VA. The new rule also allows the substituted family member to file the NOD just as the veteran would have been able to.

Below is part of the final rule.

§ 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)). 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)).

(b) Exception. (1) If a hearing request is pending pursuant to Rule 704 (§ 20.704) 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 Rules 700 through 717 (§§ 20.700 through 20.717). 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.

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