Substitution of spouse after death of veteran

Berta · May 11, 2016

Just in case , as your survivors might surely get a vet rep who does not have a clue on what these regulations mean.

Even if the survivor cannot attain DIC, if a claim was pending at you death, he/she might potentially attain an accrued amount of retro due to you ,but paid to her posthumously, if the pending claim is successful.

A successful accrued claim could also support a DIC claim in some ways, in some cases.

My husband died with 2 pending claims that had not been adjudicated yet by the RO.

In those days there were no substitution regulations so I had to start on day one to prove his claims.

The newer 5121A regs here, as explained by the BVA, are more favorable than the older accrued claim rigamorale.

My initial accrued claim was denied and then reversed very quickly to an award due to a letter from my husband's shrink, and mutiiple other pieces of evidence that I submitted with my SOC rebuttal (or maybe it was just with the NOD I sent ..I forget...)

“Effective October 10, 2008, the law was changed concerning substitution in the case of the death of a claimant. The newly revised statute provides that, "If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a) of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion." 38 U.S.C.A. § 5121A (West 2014). The Board notes that unlike an accrued benefits claim, the record is not closed on the date of death of the original claimant, but remains open for submission and development of any pertinent additional evidence. See VA Fast Letter 10-30 (August 2010). The VA Fast Letter 10-30, in addition to a proposed new regulation for inclusion in 38 C.F.R. Part 3, 14, and 20 [76 Fed. Reg. 8666 -8674 (February 15, 2011)], provide that if proper notice was sent to the original Appellant, in this case the Veteran, further notice need not be sent to the substituted party. “

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp16/Files1/1604354.txt

"The statute concerning accrued benefits claims was amended on October 10, 2008. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212 (2008). The amendment created a new statute, which provides that if a claimant died while a claim or appeal for any benefit under a law administered by VA was pending, a living person who would be eligible to receive accrued benefits due to the claimant 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. See 38 U.S.C.A. § 5121A. This 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. The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008. See Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).

As noted above, the Veteran died in May 2009 and the appellant filed a claim for dependency and indemnity compensation, Death Pension, and Accrued Benefits (VA Form 21-534) in June 2009, less than a month after his death. VA Fast Letter 10-30 states that receipt of VA Form 21-534 will be accepted as both a claim for accrued benefits and a substitution request. See Fast Letter 10-30 (Aug. 10, 2010).

The United States Court of Appeals for Veterans Claims (Court) held in Reliford v. McDonald, -- Vet. App. --, 2015 WL 1276443 (March 20, 2015), that VA Fast Letter 10-30 (Aug. 10, 2010), recognizes that it is VA's policy to accept a VA Form 21-534 as both a claim for accrued benefits and a substitution request. The Court also honed in on language in the Fast Letter specifically permitting an accrued benefits claimant to waive the opportunity to substitute/submit additional evidence in support of the claim. The Court determined that in this case, because the appellant was never notified of her right to "waive the opportunity to substitute," VA failed to comply with its own established procedures. The Court noted that although the "vast majority of accrued-benefits claimants would likely benefit from the Secretary's liberal application of section 5121A to claims for accrued benefits, it is also the accrued-benefits beneficiaries' procedural right under VA procedures to choose the path by which their claims are adjudicated."

Because substitute claimants are afforded additional procedural rights, including the submission of new evidence, adjudication of the appellant's claim for accrued benefits would be premature at this juncture. In this case, that a remand is warranted to allow the AOJ to address the issue of substitution and to give the appellant an opportunity to be substituted in place of the Veteran. To adjudicate the current appeal before the AOJ issues a decision on substitution would prejudice the appellant. Accordingly, a remand is warranted. "

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp15/Files5/1544220.txt