For Survivors Of Veterans Who Died After Opct 10,2008

[Berta]

We discussed this here before when 5121 was changed but it bears repeating- in late 2008 the VA recognized that the 38 USC 5121 regs should be amended to allow a surviving spouse to substitute his or herself for any deceased veteran who had a claim pending at time of their death and amended 38 USC 5121 to reflect this aspect of the Veterans Benefits Improvement Act of 2009:

The standard mantra to widows for decades was "The claim died with the veteran"- and NSOs and vet reps would often not even tell the survivor that they themselves could resurrect the claim by re-opening the claim in their name.

This is the new substitution amendment :

Section 212. SUBSTITUTION UPON DEATH OF CLAIMANT.

This section creates a new statute: 38 U.S.C. § 5121A, Substitution in case of death of claimant. It provides that if a claimant dies while a claim or appeal for any benefit under a law administered by the Secretary is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion.

The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant’s claim.

Effective Date- The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008.

VBA Action: Regulations will be revised to include the new provision. Pending regulatory change, for requests to be substituted for a deceased claimant:

• A written claim for substitution must be filed within one year of the date of death of the claimant whose claim is at issue.
  
• The claimant who requests to be substituted must be someone who would be eligible under 38 CFR 3.1000, Entitlement under 38 U.S.C. § 5121 to benefits due and unpaid upon death of a beneficiary.
  
• Continue adjudication of the claim as if the original claimant was not deceased.
  
• If evidence required to substantiate the claim cannot be obtained due to the original claimant’s death, the claim shall be rated based on the evidence of record. If an examination is required, consider 38 CFR § 3.655, Failure to report for Department of Veterans Affairs examination.
  
• The date of claim for the request for substitution will be the date the written request for substitution is received in VA.
  
• Any representation by a service organization, attorney or agent prior to death does not transfer to the substituted representative. If the individual desires representation he/she must execute a new power of attorney. When a request for substitution is received the new claimant should be advised of this fact.
  

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Per NVLSP this change would make the idea of "accrued" benefits obselete-still payable but not technically accrued and the survivor, as substituted claimant would have the opportunity to submit any new evidence they could to support the veteran's claim which -in the past- was evidence that was limited only to that which was in the veteran;'s C file at time of death.(38 USC 5121 and 38 CFR 3.100.)

A formal request for substitution of a deceased claimant has the same time limits as any accrued claim. The request must be made within one year of the veteran';s death to the regional office with jurisdiction over the pending claim at time of the veteran's death.

All retroactive awards under this new amendment also come under the Bonny V Principi auspices- meaning accrued retro is not limited any more to 2 years accrued and the survivor will receive ALL accrued due the veteran less any comp paid in their lifetime.

Edited December 31, 2009 by Berta

[free_spirit_etc]

So under the new regs the survivor can continue to develop the record for accrued benefits, and not be limited to what was in the record at the time of the veteran's death? (applicable for death after October 2008)

[dannydad]

We discussed this here before when 5121 was changed but it bears repeating- in late 2008 the VA recognized that the 38 USC 5121 regs should be amended to allow a surviving spouse to substitute his or herself for any deceased veteran who had a claim pending at time of their death and amended 38 USC 5121 to reflect this aspect of the Veterans Benefits Improvement Act of 2009:

The standard mantra to widows for decades was "The claim died with the veteran"- and NSOs and vet reps would often not even tell the survivor that they themselves could resurrect the claim by re-opening the claim in their name.

This is the new substitution amendment :

Section 212. SUBSTITUTION UPON DEATH OF CLAIMANT.

This section creates a new statute: 38 U.S.C. § 5121A, Substitution in case of death of claimant. It provides that if a claimant dies while a claim or appeal for any benefit under a law administered by the Secretary is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion.

The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant’s claim.

Effective Date- The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008.

VBA Action: Regulations will be revised to include the new provision. Pending regulatory change, for requests to be substituted for a deceased claimant:

• A written claim for substitution must be filed within one year of the date of death of the claimant whose claim is at issue.
  
• The claimant who requests to be substituted must be someone who would be eligible under 38 CFR 3.1000, Entitlement under 38 U.S.C. § 5121 to benefits due and unpaid upon death of a beneficiary.
  
• Continue adjudication of the claim as if the original claimant was not deceased.
  
• If evidence required to substantiate the claim cannot be obtained due to the original claimant’s death, the claim shall be rated based on the evidence of record. If an examination is required, consider 38 CFR § 3.655, Failure to report for Department of Veterans Affairs examination.
  
• The date of claim for the request for substitution will be the date the written request for substitution is received in VA.
  
• Any representation by a service organization, attorney or agent prior to death does not transfer to the substituted representative. If the individual desires representation he/she must execute a new power of attorney. When a request for substitution is received the new claimant should be advised of this fact.
  

--------------------------------------------------------------------------------------------------------------------------

Per NVLSP this change would make the idea of "accrued" benefits obselete-still payable but not technically accrued and the survivor, as substituted claimant would have the opportunity to submit any new evidence they could to support the veteran's claim which -in the past- was evidence that was limited only to that which was in the veteran;'s C file at time of death.(38 USC 5121 and 38 CFR 3.100.)

A formal request for substitution of a deceased claimant has the same time limits as any accrued claim. The request must be made within one year of the veteran';s death to the regional office with jurisdiction over the pending claim at time of the veteran's death.

All retroactive awards under this new amendment also come under the Bonny V Principi auspices- meaning accrued retro is not limited any more to 2 years accrued and the survivor will receive ALL accrued due the veteran less any comp paid in their lifetime.

hey,hey moderators how about bump this back to the top. THIS IS IMPORTANT to our SISTERS IN NEED>THANKS

[Pete53]

Berta

Thanks

[arkansastraders]

I read 38 USC 5121, but if I am not married and leave a will, can a parent collect from the VA?

[Berta]

http://www.military.com/benefits/veteran-benefits/parents-dependency-and-indemnity-compensation-dic.html

In certain limited cases parents can receive DIC.

A will would not matter.

It is also explained here:

http://statesidelegal.org/surviving-parents-benefits-dic