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National Org. of Veterans Advocates, Inc. v. Secretary of Veterans Affairs

United States Court of Appeals, Federal Circuit

January 13, 2016

NATIONAL ORGANIZATION OF VETERANS ADVOCATES, INC., Petitioner
v.
SECRETARY OF VETERANS AFFAIRS, Respondent

Petition for review pursuant to 38 U.S.C. Section 502

KENNETH M. CARPENTER, Law Offices of Carpenter Chartered, Topeka, KS, argued for petitioner.

ELIZABETH MARIE HOSFORD, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.; Y. KEN LEE, AMANDA R. BLACKMON, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before LOURIE, BRYSON, and STOLL, Circuit Judges.

OPINION

Bryson, Circuit Judge.

The National Organization of Veterans' Advocates, Inc. (" NOVA" ) petitions this court for review of certain regulations promulgated by the Department of Veterans Affairs (" DVA" ). The challenged regulations, which are codified at 38 C.F.R. § § 3.1010, 20.900(a)(2), and 20.1302 (2015), were intended to implement the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, 122 Stat. 4145 (2008). The regulations relate to the process by which an eligible survivor may be substituted for a veteran who dies while the veteran's claim for benefits is pending before the DVA or on appeal to the Board of Veterans' Appeals.

I

Prior to the enactment of the Veterans' Benefits Improvement Act, if a veteran seeking DVA benefits died while his claim was pending, the veteran's survivor could not take the place of the veteran and continue to prosecute the claim. Instead, the survivor would have to file a claim for accrued benefits under 38 U.S.C. § 5121. As the accrued benefits claim was treated as separate from the veteran's claim, the survivor would have to proceed from the beginning of the adjudication process, regardless of how far the veteran's claim had progressed. See Zevalkink v. Brown, 102 F.3d 1236, 1241 (Fed. Cir. 1996).

The 2008 Act sought to remedy that situation. Section 212 of the Act, codified as 38 U.S.C. § 5121A, authorizes eligible survivors to be " substituted as the claimant for the purposes of processing the claim to completion." Those eligible to substitute for the deceased claimant are the same individuals who would be eligible to pursue an accrued benefits claim.[1] See 38 U.S.C. § § 5121A, 5121(a)(2).

In 2011, the DVA proposed regulations to implement section 5121A. Substitution in Case of Death of Claimant (" Proposed Rule" ), 76 Fed.Reg. 8,666 (Feb. 15, 2011). After notice and an opportunity for comment, the DVA published the final version of the regulations. Substitution in Case of Death of Claimant (" Final Rule" ), 79 Fed.Reg. 52,977 (Sept. 5, 2014).

The regulations require a request to substitute to be filed with the agency of original jurisdiction (such as one of the DVA's regional offices) within one year of the claimant's death; the prospective substitute is required to submit evidence of his eligibility to substitute. 38 C.F.R. § 3.1010; see DVA Form 21-0847. The regulations further provide that if the claimant died while his appeal was pending before the Board of Veterans' Appeals, the Board must dismiss the appeal without prejudice so that the agency of original jurisdiction can address the substitution request. If the agency of original jurisdiction grants the request to substitute, then the case returns to the same place on the Board's docket that it held at the time of the veteran's death. 38 C.F.R. § § 20.1302, 20.900.

NOVA filed an original proceeding in this court under 38 U.S.C. § 502 to review the new DVA regulations. Although NOVA argues that the regulations are unlawful in two respects, we reject NOVA's contentions and deny the petition for review.

II

NOVA first challenges the requirement that prospective substitutes provide evidence of their eligibility in all cases. In some cases a veteran receiving disability benefits is entitled to receive additional benefits because of his dependents. Those same dependents may also be eligible to substitute for that ...


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