(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 800, paragraph (f) (§ 20.800(f)) or, for legacy appeals, Rule 902, paragraph (a)(2) (§ 20.902(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 800, paragraph (f) (§ 20.800(f)) or, for legacy appeals, Rule 902, paragraph (a)(2) (§ 20.902(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.
(Authority: 38 U.S.C. 5121A, 7104(a)).
[79 FR 52984, Sept. 5, 2014, as amended at 84 FR 191, Jan. 18, 2019]
Notes of Decisions
Smith v. Brown, 10 Vet. App. 330 (Vet. App. 1997).
· cites it 3× “In the May 24, 1995, BVA decision before us, the Board denied the veteran’s two disability-compensation claims, noting that his appeal with respect to the two RO decisions was pending at the time of his death and that, pursuant to 38 C.F.R. § 20.1302 , “these claims are properly…”
Snyder v. Sec'y of Vets. Affairs, 858 F.3d 1410 (Fed. Cir. 2017).
· cites it 3× “Beck’s pending dispute over attorney fees pursuant to 38 C.F.R. § 20.1302 , which requires dismissal of a veteran’s pending appeal before the Board upon the veteran’s death.”
Zevalkink v. Brown, 6 Vet. App. 483 (Vet. App. 1994).
“38 C.F.R. § 20.1302 (1993). 3. Reopened Claim.”
Denise Loreth v. Eric K. Shinseki, 23 Vet. App. 159 (Vet. App. 2009).
· cites it 3× “Code, provides that the Board has jurisdiction over “[a]ll questions in a matter which under section 511(a) of this title is subject to a decision by the Secretary.”
14-41 517 (Board of Vet. App. 2018).
· cites it 4× “§ 7104 (a); 38 C.F.R. § 20.1302 . 2. Because of the Veteran's death, the Board has no jurisdiction to adjudicate the merits of the appeal for entitlement to service connection for bilateral hearing loss.”
15-45 958 (Board of Vet. App. 2018).
· cites it 3× “§ 7104 (a) (2012); 38 C.F.R. § 20.1302 (2017); see 38 U.S.C.”
10-18 464 (Board of Vet. App. 2018).
· cites it 3× “FINDING OF FACT On March 27, 2018, VA was notified that the Veteran died in February 2018.”
200529-95551 (Board of Vet. App. 2021).
· cites it 3× “§ 7104 (a); 38 C.F.R. § 20.1302 . 2. Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal as to the issue of entitlement to service connection for reconstructive jaw surgery secondary to squamous cell carcinoma of the base of…”
15-28 832 (Board of Vet. App. 2016).
· cites it 2×
09-26 981 (Board of Vet. App. 2016).
· cites it 2×
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