[Federal Register Volume 62, Number 205 (Thursday, October 23, 1997)]
[Rules and Regulations]
[Pages 55169-55170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28059]



[[Page 55169]]

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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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