M21-1, Part VIII, Chapter 1 - Entitlement to Accrued Benefits Under 38 U.S.C. 5121

Overview

In This Chapter

This chapter contains the following topics:

Topic	Topic Name
1	General Information on Eligibility Under 38 U.S.C. 5121
2	Pending Claims
3	Elections and Automatic Increases Pending on the Date of Death
4	Evidence in File
5	Entitlement on the Basis of Relationship

1. General Information on Eligibility Under 38 U.S.C. 5121

Introduction

This topic contains general information on eligibility to accrued benefits, including

definition of accrued benefits, and
basic eligibility for accrued benefits.

Change Date

February 19, 2019

VIII.1.1.a. Definition: Accrued Benefits

Accrued benefits are benefits due to the beneficiary but not paid prior to death.

Reference: For more information on entitlement to accrued benefits, see

38 U.S.C. 5121, and
38 CFR 3.1000.

VIII.1.1.b. Basic Eligibility for Accrued Benefits

If death occurred on or after December 1, 1962, monetary benefits, other than insurance and servicemembers’s indemnity, may be authorized.

Payment may be made for benefits

to which a payee was entitled at his/her death under existing ratings or decisions, or
which are based on evidence in the file at the date of death and due and unpaid.

Important: The evidence in the file at the date of death must be evidence related to a claim that has not been finally adjudicated. To be considered “in file,” the evidence must be in the Department of Veterans Affairs’ (VA’s) possession.

Exception: A claimant eligible for accrued benefits, upon a grant of a request to substitute, may continue the initial claim, supplemental claim, higher-level review, legacy appeal, or appeal on behalf of the deceased claimant for purposes of processing the initial claim, supplemental claim, higher-level review, legacy appeal or appeal to completion.

References: For more information on

the definition of evidence in the file at the date of death, see
- 38 CFR 3.1000(d)(4) and (d)(5), and
- M21-1, Part VIII, 1.4.b
initial actions on the death of a beneficiary, see M21-1, Part III, Subpart ii, 8.A
basic entitlement to benefits under 38 U.S.C. 5121, see 38 CFR 3.1000,
requests for substitution, see
- M21-1, Part VIII, 2
- 38 U.S.C. 5121A, and
- 38 CFR 3.1010, and
the effective date of discontinuance of benefits upon the death of a beneficiary, see 38 CFR 3.500(g).

2. Pending Claims

Introduction

This topic contains general information on pending claims, including the definitions of

Change Date

February 19, 2019

VIII.1.2.a. Definition: Claim Pending at the Date of Death

A claim pending at the date of death means a claim that had not been finally adjudicated on or before the date of death, including a deceased claimant’s

initial claim
informal claim received prior to March 24, 2015
supplemental claim
a request for a higher-level review
claim to raise a clear and unmistakable error in a prior rating or decision, or
claim in which the period to file a review option has not yet expired.

Reference: For more information on the definition of claims pending at the date of death, see

38 CFR 3.1000(d)(5), and
Taylor v. Nicholson, 21 Vet.App. 126 (2007).

VIII.1.2.b.
Definition: Legacy Appeals Pending on the Date of Death

A legacy appeal pending at the date of death means a deceased claimant’s

pending NOD on a decision rendered before February 14, 2019
statement of the case in which the applicable appeal period has not expired and the appellant has not opted into the new modernized system, and
any substantive appeals or administrative appeals pending at the time of death, including issues on appeal to the
- Board of Veterans Appeals (BVA), or
- Court of Appeals for Veterans Claims (CAVC).

Notes:

If BVA issued a final decision prior to the claimant’s death, the appeal is not pending before VA, even if the 120-day period for appealing the Board’s decision to CAVC has not yet expired.
If BVA’s decision, whether favorable or unfavorable, was issued after death of the original claimant, it is a nullity.

References: For more information on

appeals pending at the date of death or appeals from disability decisions filed after death, see M21-1, Part I, 5.J.3
continuing appellate action after the death of the appellant, see De Landicho and Oseo v. Brown, 7 Vet.App. 42 (1994), and
entitlement to accrued benefits, see 38 U.S.C. 5121.

3. Elections and Automatic Increases Pending on the Date of Death

Introduction

This topic contains general information on elections and automatic increases pending on the date of death, including

Change Date

May 7, 2009

VIII.1.3.a. Elections Not Acted Upon at Time of Death

Treat an election by the deceased beneficiary not acted on at the time of death as though the decedent was still living.

Note: Pay any increase as accrued under 38 U.S.C. 5121.

Reference: For more information on elections, see M21-1, Part III, Subpart v, 4.

VIII.1.3.b. Election of Disability Compensation in Lieu of Retired Pay

If a Veteran was in receipt of retired pay from a service department on the date of his/her death and had either filed a claim for or formally elected to receive a greater rate of VA disability compensation, then accrued disability compensation may be payable. The guidelines listed below should be followed in such cases.

Before preparing an award of accrued, request that the service department furnish the monthly rates paid and the periods for which they were paid, including payments to survivors of amounts of retired pay remaining unpaid at the time of the Veteran’s death.
Determine the amount payable by deducting the amount of retired pay paid from the amount of disability compensation payable over the same period of time.

VIII.1.3.c. Automatic Increases Not Effected Prior to Death

Failure to make an automatic adjustment to authorize an increased rate payable on a Veteran’s award may be the basis for payment of accrued benefits.

When making the award of accrued benefits payable, authorize the increase as if the action had been timely taken, subject to the two-year limitation on the period concerned if death occurred prior to December 16, 2003.

The amount payable as accrued lump sum from funds withheld from a minor or incompetent beneficiary is not affected by an automatic increase, since the automatic increase is payable as accrued only under 38 U.S.C. 5121.

References: For more information on

persons entitled on the basis of relationship, see M21-1, Part VIII, 1.5, and
payments to person having custody of a beneficiary, see 38 U.S.C. 5502(d).

4. Evidence in File

Introduction

This topic contains general information on the evidence in the file, including

general policy information, and
definitions of evidence in
- the file at the date of death, and
- VA’s possession.

Change Date

September 29, 2015

VIII.1.4.a. General Policy Information

Do not request rating action for accrued purposes unless evidence was in the file at the date of death to establish entitlement.

The rating activity is responsible for determining if the medical evidence necessary for a rating determination was in the file at the date of death.

Authorization determines if all other evidence necessary to support an award was on file at the date of death.

Note: Evidence showing that the claimant is an eligible person to receive accrued benefits does not need to be in the file at the date of death.

References: For more information on

evidence in the file at the date of death, see 38 CFR 3.1000(d)(4)
entitlement on the basis of relationship, see M21-1, Part VIII, 1.5, and
time limits for evidence of eligibility. see M21-1, Part VIII, 3.3.

VIII.1.4.b. Definition: Evidence in the File at Date of Death

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 the evidence was not physically located in the VA claims folder on or before the date of death.

VIII.1.4.c. Definition: Evidence in VA’s Possession

Evidence in VA’s possession means evidence physically located at any VA facility, including, but not limited to

VA regional offices
VA insurance centers
VA medical centers
VA outpatient clinics
Vet Centers, and
the Records Management Center.

Note: Evidence in VA’s possession does not include Federal court records.

5. Entitlement on the Basis of Relationship

Introduction

This topic contains information on entitlement on the basis of relationship, including

entitlement to accrued benefits
entitlement upon the death of a
rights of persons having lower precedence
payment to the estate of the preferred claimant, and
evidence requirements.

Change Date

July 27, 2015

VIII.1.5.a. Entitlement to Accrued Benefits

Entitlement to accrued benefits vests according to the line of succession established by law. The fact that a preferred beneficiary fails to file or prosecute a claim does not permit payment of his/her share of accrued benefits to a person or persons having an equal or lower preference. A waiver of right also does not permit such payment.

Reference: For more information on the line of succession, see 38 CFR 3.1000(a).

VIII.1.5.b. Upon the Death of a Veteran

Upon the death of a Veteran, accrued benefits are payable to the living person first listed below.

When the person entitled is the …	The accrued is payable in …
surviving spouse	full to the surviving spouse. *Reference*: For more information on the definition of spouse, see 38 CFR 3.1000(d)(1).
Veteran’s children	equal shares. *Reference*: For more information on the definition of child, see 38 CFR 3.1000(d)(2).
parents (both)	equal shares, if dependent at the date of the Veteran’s death. *Reference*: For more information on the definition of dependent parent, see 38 CFR 1000(d)(3).
sole surviving parent	full to the sole surviving parent, if dependent at the date of the Veteran’s death.

VIII.1.5.c. Upon the Death of a Surviving Spouse or Child

The table below lists the person(s) entitled to accrued benefits upon the death of a surviving spouse or child.

If the death is that of a …

Then the accrued is payable to the …

surviving spouse

Veteran’s children.

Note: Accrued Dependent’s Educational Assistance (DEA) of a spouse is payable only as reimbursement under 38 CFR 3.1000(f).

child

surviving child or children on the basis of relationship with the exceptions as listed below.

Notes:

If the deceased child was entitled to an apportioned share of the surviving spouse’s award, the accrued benefit is payableonly as reimbursement under 38 CFR 3.1000(b)(3).
If the deceased child was in receipt of Survivors Pension, compensation, or Dependency and Indemnity Compensation, a remaining child who has elected DEA benefits is entitled only to the unpaid benefits which became due and payable to the deceased child for periods prior to the commencement of DEA benefits to the surviving child.

Reference: For more information on the definition of child, see 38 CFR 3.1000(d)(2).

VIII.1.5.d. Rights of Persons Having Lower Preference

When a person having preferred entitlement dies, forfeits entitlement or otherwise becomes disqualified before receiving and negotiating the check for his/her share of the accrued benefit, pay the next person entitled based on relationship or reimbursement, if a claim is timely filed.

Reference: For more information on forfeiture, see 38 CFR 3.669.

VIII.1.5.e. Payment to Estate of Preferred Claimant

If a person having preferred title has filed a claim, established entitlement, and died before payment and no other person within a permitted class or relationship survived, the accrued amount becomes payable as reimbursement to that individual’s estate if he/she was the payer of the expenses of last illness and burial of the deceased beneficiary.

Reference: For more information on claims for reimbursement, see M21-1, Part VIII, 5.11.

VIII.1.5.f. Evidence Requirements

Evidence is required to eliminate persons who would have the same or a higher status of preference only if the record indicates that a person survived the deceased beneficiary. Otherwise, statements of record received by VA prior to the death of the Veteran or primary beneficiary are adequate.

Change-July-27-2015-Transmittal-Sheet-M21-1VIII_1_TS.docx	May 18, 2019	41 KB
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Last Updated: 2 years ago in Chapter 1 Entitlement to Accrued Benefits Under 38 U.S.C. 5121, Part VIII Accrued Benefits

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M21-1, Part VIII, Chapter 1 – Entitlement to Accrued Benefits Under 38 U.S.C. 5121

Overview

1. General Information on Eligibility Under 38 U.S.C. 5121

Introduction

Change Date

VIII.1.1.a. Definition: Accrued Benefits

VIII.1.1.b. Basic Eligibility for Accrued Benefits

2. Pending Claims

Introduction

Change Date

VIII.1.2.a. Definition: Claim Pending at the Date of Death

VIII.1.2.b.
Definition: Legacy Appeals Pending on the Date of Death

3. Elections and Automatic Increases Pending on the Date of Death

Introduction

Change Date

VIII.1.3.a. Elections Not Acted Upon at Time of Death

VIII.1.3.b. Election of Disability Compensation in Lieu of Retired Pay

VIII.1.3.c. Automatic Increases Not Effected Prior to Death

4. Evidence in File

Introduction

Change Date

VIII.1.4.a. General Policy Information

VIII.1.4.b. Definition: Evidence in the File at Date of Death

VIII.1.4.c. Definition: Evidence in VA’s Possession

5. Entitlement on the Basis of Relationship

Introduction

Change Date

VIII.1.5.a. Entitlement to Accrued Benefits

VIII.1.5.b. Upon the Death of a Veteran

VIII.1.5.c. Upon the Death of a Surviving Spouse or Child

VIII.1.5.d. Rights of Persons Having Lower Preference

VIII.1.5.e. Payment to Estate of Preferred Claimant

VIII.1.5.f. Evidence Requirements

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M21-1, Part VIII, Chapter 1 – Entitlement to Accrued Benefits Under 38 U.S.C. 5121

Overview

1. General Information on Eligibility Under 38 U.S.C. 5121

Introduction

Change Date

VIII.1.1.a. Definition: Accrued Benefits

VIII.1.1.b. Basic Eligibility for Accrued Benefits

2. Pending Claims

Introduction

Change Date

VIII.1.2.a. Definition: Claim Pending at the Date of Death

VIII.1.2.b. Definition: Legacy Appeals Pending on the Date of Death

3. Elections and Automatic Increases Pending on the Date of Death

Introduction

Change Date

VIII.1.3.a. Elections Not Acted Upon at Time of Death

VIII.1.3.b. Election of Disability Compensation in Lieu of Retired Pay

VIII.1.3.c. Automatic Increases Not Effected Prior to Death

4. Evidence in File

Introduction

Change Date

VIII.1.4.a. General Policy Information

VIII.1.4.b. Definition: Evidence in the File at Date of Death

VIII.1.4.c. Definition: Evidence in VA’s Possession

5. Entitlement on the Basis of Relationship

Introduction

Change Date

VIII.1.5.a. Entitlement to Accrued Benefits

VIII.1.5.b. Upon the Death of a Veteran

VIII.1.5.c. Upon the Death of a Surviving Spouse or Child

VIII.1.5.d. Rights of Persons Having Lower Preference

VIII.1.5.e. Payment to Estate of Preferred Claimant

VIII.1.5.f. Evidence Requirements

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VIII.1.2.b.
Definition: Legacy Appeals Pending on the Date of Death