What are Accrued Benefits for Veterans Claims?

Sometimes the claimant dies before VA makes a decision on his or her application. There are two possible ways for a survivor to receive a benefit under these circumstances. The first is accrued benefits and the second is a substitution for a claim.

Sometimes the claimant will die before the adjudication process is complete and before a decision has been made on the claim. There is almost always a number of weeks or months between the effective date of the claim and the date of death of the claimant. Because of the difference between the claim date and date of decision there could be retroactive payments due under a pending claim to a survivor of the claimant under certain conditions. VA calls these benefits "accrued benefits."

If a veteran was already receiving Disability Compensation benefits and the new claim was for a reevaluation or secondary service condition, a surviving spouse or dependent child will receive one month's worth of disability income for the month of death of the veteran. But this is not an accrued benefit, it is a benefit guaranteed under the regulation.

If the claimant is a single veteran or a surviving spouse of a veteran or a dependent child of a veteran there is generally no "accrued benefit" that would be made for a pending claim to members of the family unless there is one or more other remaining dependent children of the veteran. On the other hand, if other individuals such as family members not in the hierarchy listed below or other individuals or companies had paid for last costs of the deceased claimant or were owed just debts, any potential accrued benefits could be paid to these entities.

In this section we will discuss the rules pertaining to what happens if a claim is pending and a decision has not been made when the claimant dies. The regulation below is applicable when un-paid monies are owed the deceased. This is found in Title 38 CFR §3.1000.

38 CFR §3.1000 Entitlement under 38 U.S.C. 5121 to benefits due and unpaid upon death of a beneficiary.

(a) Basic entitlement. Except as provided in §§3.1001 and 3.1008, where death occurred on or after December 1, 1962, periodic monetary benefits (other than insurance and servicemembers' indemnity) authorized under laws administered by the Department of Veterans Affairs, to which a payee was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at date of death, and due and unpaid will, upon the death of such person, be paid as follows:

(Authority: 38 U.S.C. 5121(a)

(1) Upon the death of a veteran to the living person first listed as follows:

(i) His or her spouse;
(ii) His or her children (in equal shares);
(iii) His or her dependent parents (in equal shares) or the surviving parent.

(2) Upon the death of a surviving spouse or remarried surviving spouse, to the veteran's children.

(3) Upon the death of a child, to the surviving children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation.

(4) Upon the death of a child claiming benefits under chapter 18 of this title, to the surviving parents.

(5) In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. (See §3.1002.)

(b) we removed these rules as they are not pertinent to our discussion here

(c) Claims and evidence. Application for accrued benefits must be filed within 1 year after the date of death. A claim for death pension, compensation, or dependency and indemnity compensation, by an apportionee, surviving spouse, child or parent is deemed to include claim for any accrued benefits. (See §3.152(b)).

(1) If an application for accrued benefits is incomplete because the claimant has not furnished information necessary to establish that he or she is within the category of eligible persons under the provisions of paragraphs (a)(1) through (a)(5) or paragraph (b) of this section and that circumstances exist which make the claimant the specific person entitled to payment of all or part of any benefits which may have accrued, VA shall notify the claimant: (i) Of the type of information required to complete the application; (ii) That VA will take no further action on the claim unless VA receives the required information; and (iii) That if VA does not receive the required information within 1 year of the date of the original VA notification of information required, no benefits will be awarded on the basis of that application.

(2) Failure to file timely claim, or a waiver of rights, by a preferred dependent will not serve to vest title in a person in a lower class or a claimant for reimbursement; neither will such failure or waiver by a person or persons in a joint class serve to increase the amount payable to another or others in the class.

(Authority: 38 U.S.C. 5121(c); 5112(b))

(d) Definitions.

(1) Spouse means the surviving spouse of the veteran, whose marriage meets the requirements of §3.1(j) or §3.52. Where the marriage meets the requirements of §3.1(j) date of marriage and continuous cohabitation are not factors.

(2) Child is as defined in §3.57 and includes an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age as well as an unmarried child over the age of 18 but not over 23 years of age, who was pursuing a course of instruction within the meaning of §3.57 at the time of the payee's death. However, upon the death of a child in receipt of death pension, compensation, or dependency and indemnity compensation, any accrued will be payable to the surviving child or children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation. Upon the death of a child, another child who has elected dependents' educational assistance under 38 U.S.C. chapter 35 may receive accrued death pension, compensation, or dependency and indemnity compensation, payable on behalf of the deceased child for periods prior to the commencement of benefits under that chapter.

(3) Dependent parent is as defined in §3.59: Provided, that the mother or father was dependent within the meaning of §3.250 at the date of the veteran's death.

(4) Evidence in the file at date of death means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death, in support of a claim for VA benefits pending on the date of death.

(5) Claim for VA benefits pending on the date of death means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. Such a claim includes a deceased beneficiary's claim to reopen a finally disallowed claim based upon new and material evidence or a deceased beneficiary's claim of clear and unmistakable error in a prior rating or decision. Any new and material evidence must have been in VA's possession on or before the date of the beneficiary's death.

(e) Subsistence allowance. Subsistence allowance under the provisions of 38 U.S.C. ch. 31 remaining due and unpaid at the date of the veteran's death, is payable under the provisions of this section.

(f) Dependents' educational assistance. Educational assistance allowance or special restorative training allowance under 38 U.S.C. ch. 35, remaining due and unpaid at the date of death of an eligible surviving spouse or eligible child is payable to a child or children of the veteran (see paragraphs (a)(2), (a)(3) and (d)(2) of this section), or on the expenses of last sickness and burial (see paragraph (a)(5) of this section.) Benefits due and unpaid at the date of death of an eligible spouse are payable only on the expenses of last sickness and burial (see paragraph (a)(5) of this section).

(g) Veterans educational assistance. Educational assistance allowance under 38 U.S.C chapters 30, 32, or 34, and 10 U.S.C. chapter 1606 remaining due and unpaid at the date of the veteran's death is payable under the provisions of this section.

(Authority: 38 U.S.C. 5121)

(h) Clothing allowance. Clothing allowance under 38 U.S.C. 1162 remaining due and unpaid at the date of the veteran's death is payable under the provisions of this section.

(i) Active service pay. Benefits awarded under this section do not include compensation or pension benefits for any period for which the veteran received active service pay.

(Authority: 38 U.S.C. 5304(c))

The Scope of 38 CFR §3.1000

This regulation covers several different issues.

1. The first issue is if the death occurred and there was no evidence in the file at the date of death that would have entitled the claimant to any ratings or decisions based on the information in the file, there would be no benefit. (Exception: See information for substitute claimant)
2. The second issue is if at the death of the claimant there was evidence in the file to award a decision and entitlement under existing rules, an "accrued benefit" would be paid to any one of a hierarchy of survivors.
3. The hierarchy or priority – as VA calls it – of survivors who would be paid or possibly apportioned the "accrued benefit" would be in this order
   a. the veteran’s spouse or
   b. if the veteran’s spouse is deceased or dies, the veteran’s children in equal shares or
   c. if the veteran’s spouse is deceased and there are no dependent children, the veteran’s dependent parents in equal shares.

There is no provision under the rules to pay the estate of the claimant if there are no survivors in the hierarchy above. There is still potential for payment from a portion of the accrued benefits or all of the accrued benefits which is called a "reimbursement accrued benefit." This amount, which could be a part of or up to the total amount of accrued benefit, is paid to other persons not in the hierarchy.

This payment could be made for reimbursement for final expenses incurred on behalf of the claimant. Reimbursement could include out-of-pocket costs for final expenses of the deceased, out-of-pocket repayment for just debts and so forth. Final expenses include hospital, hospice, funeral, and burial. They do not include expenses like unpaid homecare or nursing home bills. Reimbursement will not be paid for any out-of-pocket costs that are reimbursed by insurance or other means. We will discuss the special reimbursement accrued benefit further on.

The regulation also specifies that certain education benefits, certain back payments and allowances will be paid regardless. Evidence on file with VA is also further defined in the adjudication manual.

Claims for Accrued Benefits can be made using VA Form 21p-601. We have provided this form for you on the Claim Support Disc. It is advisable to include the deceased veteran’s death certificate and all receipts and paid invoices that the person paid on behalf of the deceased claimant.

Please refer to the table of contents in the top right column of this page for more topics on Benefits for Survivors of Veterans.

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