What is a Survivors Substitution for a Claim for Veterans Benefits?
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.
Because of the requirement that at the death, sufficient evidence had to be in the file in the Regional Office or at the Board of Veterans Appeals in order to approve a claim, very few claims involving death of a claimant in the past were actually approved. The suspicion was that VA had the information but because the claimant was dead, none of the survivors knew the true nature of the case – only the Regional Office had the details. In this case of a pending claim, reasons for not awarding a benefit could easily be explained away by the Regional Office. This injustice commonly resulted in the phrase "the claim dies with the claimant."
We don't really believe VA would act in this manner as federal law requires the Regional Office to always be an advocate for the claimant. There are specific rules pertaining to pending claims at the death of the claimant and we will discuss them further on in this section.
Nevertheless, a surviving spouse or dependent child or dependent parent should have a right to continue the claim or an appeal before the BVA on behalf of the claimant.
Congress recognized the inequity of this situation and passed legislation in 2008 to correct it.
§3.1010 Substitution under 38 U.S.C. 5121A following death of a claimant.
(a) Eligibility. If a claimant dies on or after October 10, 2008, a person eligible for accrued benefits under §3.1000(a) listed in 38 CFR 3.1000(a)(1) through (5) may, in priority order, request to substitute for the deceased claimant in a claim for periodic monetary benefits (other than insurance and servicemembers' indemnity) under laws administered by the Secretary, or an appeal of a decision with respect to such a claim, that was pending before the agency of original jurisdiction or the Board of Veterans' Appeals when the claimant died. Upon VA's grant of a request to substitute, the substitute may continue the claim or appeal on behalf of the deceased claimant for purposes of processing the claim or appeal to completion. Any benefits ultimately awarded are payable to the substitute and other members of a joint class, if any, in equal shares.
(b) Time and place for filing a request. A person may not substitute for a deceased claimant under this section unless the person files a request to substitute with the agency of original jurisdiction no later than one year after the claimant's death.
(c) Request format. (1) A request to substitute must be submitted in writing. At a minimum, a request to substitute must indicate intent to substitute; include the deceased claimant's claim number, Social Security number, or appeal number; and include the names of the deceased claimant and the person requesting to substitute. (2) In lieu of a specific request to substitute, a claim for accrued benefits, survivors pension, or dependency and indemnity compensation by an eligible person listed in §3.1000(a)(1) through (5) is deemed to include a request to substitute if a claim for periodic monetary benefits (other than insurance and servicemembers' indemnity) under laws administered by the Secretary, or an appeal of a decision with respect to such a claim, was pending before the agency of original jurisdiction or the Board of Veterans' Appeals when the claimant died. A claimant for accrued benefits, survivors pension, or dependency and indemnity compensation may waive the right to substitute in writing over the claimant's signature.
(d) Evidence of eligibility. A person filing a request to substitute must provide evidence of eligibility to substitute. Evidence of eligibility to substitute means evidence demonstrating that the person is among those listed in the categories of eligible persons in §3.1000(a)(1) through (5) and first in priority order. If a person's request to substitute does not include evidence of eligibility when it is originally submitted and the person may be an eligible person, the Secretary will notify the person— (1) Of the evidence of eligibility required to complete the request to substitute; (2) That VA will take no further action on the request to substitute unless VA receives the evidence of eligibility; and (3) That VA must receive the evidence of eligibility no later than 60 days after the date of notification or one year after the claimant's death, whichever is later, or VA will deny the request to substitute.
(e) Decisions on substitution requests. Subject to the provisions of §20.1302 of this chapter, the agency of original jurisdiction will decide in the first instance all requests to substitute, including any request to substitute in an appeal pending before the Board of Veterans' Appeals . (1) Notification. The agency of original jurisdiction will provide written notification of the granting or denial of a request to substitute to the person who filed the request, together with notice in accordance with §3.103(b)(1). (2) Appeals. The denial of a request to substitute may be appealed to the Board of Veterans' Appeals pursuant to 38 U.S.C. 7104(a) and 7105. (3) Joint class representative. (i) A joint class means a group of two or more persons eligible to substitute under the same priority group under §3.1000(a)(1) through (a)(5), e.g., two or more surviving children. (ii) In the case of a joint class of potential substitutes, only one person of the joint class may be a substitute at any one time. The first eligible person in the joint class to file a request to substitute will be the substitute representing the joint class.
(f) Adjudications involving a substitute. The following provisions apply with respect to a claim or appeal in which a survivor has been substituted for the deceased claimant: (1) Notice under §3.159. VA will send notice under §3.159(b), "Department of Veterans Affairs assistance in developing claims," to the substitute only if the required notice was not sent to the deceased claimant or if the notice sent to the deceased claimant was inadequate. (2) Expansion of the claim not permitted. A substitute may not add an issue to or expand the claim. However, a substitute may raise new theories of entitlement in support of the claim. (3) Submission of evidence and other rights. A substitute has the same rights regarding hearings, representation, appeals, and the submission of evidence as would have applied to the claimant had the claimant not died. However, rights that may have applied to the claimant prior to death but which cannot practically apply to a substitute, such as the right to a medical examination, are not available to the substitute. The substitute must complete any action required by law or regulation within the time period remaining for the claimant to take such action on the date of his or her death. The time remaining to take such action will start to run on the date of the mailing of the decision granting the substitution request. (4) Board of Veterans' Appeals procedures. The rules and procedures governing appeals involving substitutes before the Board of Veterans' Appeals are found in parts 19 and 20 of this chapter.
(g) Limitations on substitution. The following limitations apply with respect to substitution: (1) A claim or appeal must be pending. (i) A claim is considered to be pending if the claimant had filed the claim with an agency of original jurisdiction but dies before the agency of original jurisdiction makes a decision on the claim. A claim is also considered to be pending if, at the time of the claimant's death, the agency of original jurisdiction has made a decision on the claim, but the claimant has not filed a notice of disagreement, and the period allowed by law for filing a notice of disagreement has not expired. (ii) An appeal is considered to be pending if a claimant filed a notice of disagreement in response to a notification from an agency of original jurisdiction of its decision on a claim, but dies before the Board of Veterans' Appeals issues a final decision on the appeal. If the Board issued a final decision on an appeal prior to the claimant's death, the appeal is not pending before VA for purposes of this section, even if the 120-day period for appealing the Board's decision to the Court of Appeals for Veterans Claims has not yet expired. (2) Benefits awarded. Any benefits ultimately awarded are limited to any past-due benefits for the time period between the effective date of the award and what would have been the effective date of discontinuance of the award as a result of the claimant's death. (3) Benefits for last sickness and burial only. When substitution cannot be established under any of the categories listed in §3.1000(a)(1) through (a)(4), only so much of any benefits ultimately awarded may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial. No part of any benefits ultimately awarded shall be used to reimburse any political subdivision of the United States for expenses incurred in the last sickness or burial of any claimant. (4) Substitution by subordinate members prohibited. Failure to timely file a request to substitute, or a waiver of the right to request substitution, by a person of a preferred category of eligible person will not serve to vest the right to request substitution in a person in a lower category or a person who bore the expense of last sickness and burial; neither will such failure or waiver by a person or persons in a joint class serve to increase the amount payable to other persons in the class. (5) Death of a substitute. If a substitute dies while a claim or appeal is pending before an agency of original jurisdiction, or an appeal of a decision on a claim is pending before the Board, another member of the same joint class or a member of the next preferred subordinate category listed in §3.1000(a)(1) through (5) may substitute for the deceased substitute but only if the person requesting the successive substitution files a request to substitute no later than one year after the date of the substitute's death (not the date of the claimant's death). (Authority: 38 U.S.C. 5121, 5121A)
Further Discussion of the Substitution Option
VA Form 21-0847 is usually required to initiate the substitution covered in the regulation above. Substitution can also be initiated through written request.
Unfortunately, if an accrued benefit appears to exist, VA will not notify a survivor of the possibility of substituting for the claim. Instead, the Regional Office will typically send the appropriate forms for an accrued benefit, but this is not always in the interest of the survivors. In a way, this is a disfavor to following through on a claim where perhaps substitution might be a better strategy. In other words, a survivor may never know about the opportunity for substitution, because of the way VA handles accrued benefits.
Consider this example. The Regional Office has enough information to make a decision when the veteran dies, but the evidence has not been fully weighed for a final award or denial. The Regional Office would not notify the surviving spouse of substitution because there is likely an accrued benefit. In this example, substitution would be important in the case the deceased claimant had additional evidence to submit and then died. This new evidence would have resulted in a more favorable decision. These types of situations where more evidence is pending at death but not submitted, occur at least more frequently than not.
Unfortunately, if VA has enough evidence on file to make a decision the Regional Office will send out the forms pertaining to accrued benefits and not the form for substitution. But what if the final decision for accrued benefits is not favorable such as a lower disability rating or no disability rating at all. Or as in the case we discuss below, a denial was issued, but the veteran was in the process of reopening the claim with new and relevant evidence when he died. The surviving spouse in this case had no idea that she could step in and continue the claim on his behalf. The claim was closed as far as VA was concerned. There are numerous cases like these where the survivors may never know about the option for substitution and they lose the potentially better benefit or they lose the benefit entirely. In our particular case, the veteran died after receiving a denial letter and before the Regional Office had adequate new information to reopen the claim. The surviving spouse, as a substitute, submitted new and relevant evidence to reopen the claim along with a strong opinion letter from the veteran's treating physician. This new evidence allowed the Regional Office to award a benefit posthumously.
Had we not taken the initiative to assist the surviving spouse to become a substitute, using VA Form 21-0847, the entire award of $32,500 for back payment, $2,000 for funeral and burial and an award of DIC for $1,340 a month (subject to annual increases) to the surviving spouse for the rest of her life would have been lost. There would have been no benefit at all. Without our assistance, the surviving spouse had no idea she could step in and take over for her deceased husband's claim.
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