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HR 1681 IH

To amend title 38, United States Code, to allow for substitution of parties in the case of a claim for benefits provided by the Department of Veterans Affairs when the applicant for such benefits dies while the claim is pending, and for other purposes.

April 9, 2003

Mr. EVANS (for himself and Mr. MICHAUD) introduced the following bill; which was referred to the Committee on Veterans' Affairs

To amend title 38, United States Code, to allow for substitution of parties in the case of a claim for benefits provided by the Department of Veterans Affairs when the applicant for such benefits dies while the claim is pending, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Veterans Claims Continuation Act'.

SEC. 2. CONTINUATION OF CLAIM AND SUBSTITUTION OF PARTIES UPON DEATH OF APPLICANT FOR BENEFITS.

(a) IN GENERAL- Chapter 51 of title 38, United States Code, is amended by adding at the end the following new section:

`Sec. 5127. Deaths of applicants for benefits: continuation of claims and substitution of parties

`(a) In the case of a claim for compensation, dependency and indemnity compensation, or pension that was submitted to the Secretary by a claimant who dies on or after the date of the enactment of the Veterans Claims Continuation Act and before a decision on that claim becomes final in accordance with section 7291 of this title, the claim shall not be extinguished if, within the time period prescribed in subsection (c)(2), an eligible person submits an application to the Secretary, or submits a motion to a court with jurisdiction over the claim, to be substituted as the claimant in order to continue prosecution of that claim. The Secretary or the court, as the case may be, shall approve any such application submitted by an eligible person.

`(b)(1) For purposes of this section and section 7270 of this title, and subject to paragraphs (2) and (3), the term `eligible person' means any of the following individuals:

`(A) The surviving spouse.

`(B) Surviving children who have attained the age of 21.

`(C) A surviving parent.

`(D) The executor, administrator or other legal representative of the deceased claimant's estate.

`(E) The heirs of the veteran.

`(2) In a case where more than one individual referred to in paragraph (1) submits an application or motion under subsection (a) to be substituted as a claimant, the eligible person shall be determined in the order listed in subparagraphs (A) through (E) of paragraph (1). In the case of individuals submitting an application or motion under subsection (a) who are specified in the same subparagraph of paragraph (1), the eligible person shall be the first in time to submit such application or motion.

`(3) The Secretary may determine that an individual who otherwise would be the `eligible person' for purposes of substitution for a deceased claimant under this section is not competent or otherwise is not a proper representative of the estate. In such a case, the Secretary shall notify the applicant of such determination in writing and shall substitute another eligible person to represent the interests of the deceased claimant.

`(c)(1) Upon being notified of the death of a claimant, the Secretary shall send a notice to the estate of the decedent at the decedent's last know address and to the authorized representative of the decedent, if any, informing the estate and the representative that the claim will be dismissed unless an application for substitution as the claimant is received by the Secretary within one year of the claimant's death.

`(2) An application under this section for substitution as the claimant on a claim must be filed not later than the later of--

`(A) the end of the one-year period beginning on the date of the claimant's death; or

`(B) the end of the six-month period beginning on the date of the notification under paragraph (1).

`(d) A person named as a substitute claimant under section (a) shall be accorded all the rights and responsibilities of the original claimant.

`(e) If benefits are payable as a result of a decision on a claim by a substituted claimant named under this section, such benefits shall be paid as follows:

`(1) If the deceased claimant was claiming benefits as a veteran, to the living person first listed below:

`(A) The veteran's spouse.

`(B) The veteran's children (in equal shares).

`(C) The veteran's dependent parents (in equal shares).

`(2) If the deceased claimant was claiming benefits as the surviving spouse of a veteran, to the surviving children of the deceased veteran (in equal shares).

`(3) If the deceased claimant was claiming benefits under chapter 18 of this title as the child of a veteran, to the surviving parents of the child (in equal shares).

`(4) If there is no beneficiary who meets the criteria of paragraphs (1), (2), and (3) and in all other cases, to the decedent's estate, unless the estate will escheat.

`(f) Upon the appointment of a substitute claimant, the Secretary shall notify the person substituted as the claimant as to the evidence or information necessary to substantiate the pending claim. If such information or evidence is not received within one year from the date of such notification, no benefits may be paid on the claim.

`(g) For purposes of section 5112(b) of this title, the term `payee' as used in such section shall be deemed to include a deceased claimant for whom a substitute claimant is appointed under this section.'.

(b) CLERICAL AMENDMENT- The table of sections at the beginning of such chapter is amended by adding at the end the following new item:

`5127. Deaths of applicants for benefits: continuation of claims and substitution of parties.'.

SEC. 3. PAYMENT OF ACCRUED BENEFITS APPLICABLE TO DEATHS BEFORE DATE OF ENACTMENT.

(a) IN GENERAL- Subsection (a) of section 5121 of title 38, United States Code, is amended--

(1) in the matter preceding paragraph (1), by striking `periodic monetary benefits' and all that follows through `be paid' and inserting `accrued benefits of a deceased individual who died before the date of the enactment of the Veterans Claims Continuation Act that are due and unpaid for a period not to exceed two years shall be paid'; and

(2) in paragraph (5), by striking `only so much' and all that follows through `burial' and inserting `to the decedent's estate, unless the estate will escheat'.

(b) DEFINITION OF ACCRUED BENEFITS- Such section is further amended by adding at the end the following new subsection:

`(d) For purposes of this section and section 5122 of this title, the term `accrued benefits', with respect to a deceased individual, means periodic monetary benefits (other than insurance and servicemember's indemnity) under laws administered by the Secretary to which the deceased individual was entitled at death under existing ratings or decisions or based on evidence in the file at date of death.'.

SEC. 4. SUBSTITUTION OF SURVIVOR IN CASES PENDING BEFORE A COURT.

(a) IN GENERAL- (1) Subchapter II of chapter 72 of title 38, United States Code, is amended by adding at the end the following new section:

`Sec. 7270. Cases pending on death of claimant: substitution of parties

`(a) If a claimant dies before filing an appeal under section 7266 of this title, an eligible person may file an appeal as a substituted claimant for the decedent within the time period specified under section 7266 of this title. If an appellant or respondent dies while a claim is pending before a court and before a final decision is rendered under section 7291 of this title, an eligible person may move the court for substitution of claimant in the pending action. Any such motion filed with the the United States Court of Appeals for Veterans Claims or to the United States Court of Appeals for the Federal Circuit must be filed within the time period prescribed by sections 7266 and 7292 of this title, respectively, or within one year of the claimant's death, whichever is earlier.

`(b) In any case in which a final decision under section 7291 of this title has not been made, an eligible person may move a court to be substituted as the appellant (or respondent as the case may be) for an appellant or respondent who dies while an appeal is pending. The court shall, upon filing of a timely motion, appoint an eligible person to substitute as the claimant to continue prosecution or defense of that claim.

`(c) Nothing in this section shall require or authorize substitution for a deceased claimant if a final decision under section 7291 of this title has been entered before the filing of a motion for substitution.

`(d) In this section, the term `eligible person' has the meaning given that term in section 5127(b) of this title.'.

(2) The table of sections at the beginning of such subchapter is amended by adding at the end the following new item:

`7270. Cases pending on death of claimant: substitution of parties.'.

(b) EFFECTIVE DATE- Section 7270 of title 38, United States Code, as added by subsection (a), shall apply with respect to deaths of claimants on or after the date of the enactment of this Act.

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