VA Ruling On Substitution in the Case of Death of Claimant
In large part because of the unceasing hard work that veterans’ advocates do every day, there is sometimes very good news for veterans in the form of changes to veterans' law. Earlier this month – four years after initial pressure from the National Organization of Veterans’ Advocates before the Federal Circuit – the Department of Veterans’ Affairs issued its final rule regarding substitution in the case of death of claimant, and the decision clearly marks progress.
In its final rule on this area of substitution, which can be read here, VA has decided (rightly) that the words “substitution” and/or “substitute” are not necessary in a request to substitute. Many claimants are not familiar with the language of VA law when entering the process of substitution, so requiring exact language, rather than simply requiring a qualified substituted claimant to make it clear he or she is requesting to continue a claim after the death of the original claimant, was nonsensical.
Nor is it necessary any longer for a person requesting to be substituted in a pending claim after the original claimant’s death to provide information such as the claim number. Letting a deadline pass simply because a potential substituted claimant did not have specific information about the case – or, more likely, have the knowledge of what information to provide – was a good example of the VA process seeming intentionally obtuse. Now, a Social Security number will be accepted by VA in lieu of a claim number, which, according to VA, “make[s] the regulation claimant-friendly while balancing VA's need to identify the pending claim or appeal in which the survivor seeks to substitute with the substitute's need for simple procedures.”
Also, whereas VA previously argued, in cases of substitution after an appellant’s death, that a Notice of Disagreement must have been filed before an appellant’s death for substitution to be granted, now VA states simply 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.”
Further, VA’s new rule states that motions for substitution will be considered acceptable 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 [appeal] and the 1-year period for filing an NOD has not expired.” This is immensely positive, as it allows substitute appellants (persons who would be eligible to receive accrued benefits) to not only continue a claim but to file appeals in cases that previously would have been voided.
However, not all of VA’s decision on substitution in the case of death of a claimant was beneficial to substituted, and potentially substituted, claimants. Have a look at the final rule using this link and see for yourself.
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