Overview
In This Chapter |
This chapter contains the following topics:
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1. General Information on Requests to Substitute
Introduction |
This topic contains general information on eligibility to accrued benefits, including
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Change Date |
February 19, 2019
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VIII.2.1.a. Definition: Substitution in Case of Death of Claimant |
Substitution is the right of a living person to submit additional evidence in support of the deceased claimant’s pending claim, request for decision review, or appeal of decision.
Notes:
References: For more information on
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VIII.2.1.c. Definition: Substitute Claimant |
A substitute claimant is an individual whom the Department of Veterans Affairs (VA) has recognized to replace the original claimant in a pending claim, decision review request, or pending appeal (i.e., a preferred eligible survivor).
Any eligible survivor submitting a claim for accrued benefits
Note: The evidentiary record remains closed when an HLR is requested. Any evidence submitted while a HLR request is pending, either from the original claimant or the substitute, cannot be considered in the decision. In order for the evidence to be considered, the substitute claimant can either withdraw the request for a HLR and submit a supplemental claim, or submit a supplemental claim upon completion of the HLR.
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References: For more information on
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VIII.2.1.e. Right to Waive Substitution |
A claimant may waive, in writing, the right to substitute. In those instances, the accrued claim is processed solely based on evidence in the claims folder at the time of the original claimant’s death.
Per Reliford v.McDonald, VA has a duty to provide notification to eligible accrued benefits claimants of their right to waive substitution. This notice should be provided in the first development letter released to the substitute claimant.References: For more information on the
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2. Eligibility to Request Substitution
Introduction |
This topic contains information on eligibility to request substitution, including
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Change Date |
February 19, 2019
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VIII.2.2.a. Eligibility to Substitute |
A person filing a request to substitute must provide evidence of eligibility to substitute. Evidence of eligibility means evidence demonstrating the person is
Note: In order to stand in as a substitute claimant/appellant, the deceased must have died on or after October 10, 2008.
Reference: For more information on the categories of eligible persons in requests for substitution, see
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VIII.2.2.b. Definition: Categories of Eligible Persons |
The categories of eligible persons is a person eligible for accrued benefits. The following is a list of the eligible persons:
Note: In all other cases, only so much of the accrued benefit may be paid as necessary to reimburse the person who bore the expense of last sickness or burial.
References: For more information on categories of eligible persons in
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VIII.2.2.c. 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 preferred category of eligible person will not serve to vest the right to request substitution in a person
Note: A failure to timely file or request waiver by a person(s) in a joint class will not serve to increase the amount payable to other persons in the class.
Reference: For more information on the prohibition of substitution by subordinate members, see 38 CFR 3.1010(g)(4).
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VIII.2.2.d. Death of a Substitute Claimant |
If a substitute claimant dies while a claim, decision review request, or appeal is pending, a request to continue the original claimant’s claim may be granted to
Reference: For more information on death of a substitute claimant, see 38 CFR 3.1010(g)(5).
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VII.1.2.2.e. Time Limit to File a Claim Based on Death of a Substitute Claimant |
The request to substitute for a substitute claimant must be received no later than one year after the date of the substitute’s death (not the original claimant’s death).
Reference: For more information on the time limit to file a claim based on the death of a substitute claimant, see 38 CFR 3.1010(g)(5).
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VIII.2.2.f. Evidence Requirements |
Evidence is required to eliminate persons who would have 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.
Reference: For more information on evidence requirements, see 38 CFR 3.1010(d).
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VIII.2.2.g. The Right to Appeal the Denial of a Request to Substitute |
A claimant has the right to appeal a denial of the request to substitute. 38 CFR 3.1010(e)(2) states that “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.”
However, for decisions concerning the right to substitute made on or after February 19, 2019, claimants have the right to appeal to the Board of Veterans’ Appeals or to request a decision review. Therefore, the decision notice should include VA Form 20-0998, Your Rights to Seek Further Review of Our Decision.
References: For more information on
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3. Rights of the Substitute Claimant Following the Grant of Substitution
Introduction |
This topic contains information on rights of the substitute claimant, including
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Change Date |
February 19, 2019
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VIII.2.3.a. Timelines for Substitute Claimant to Take Action |
Once a substitution request is granted, the substitute claimant 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.
Note: The time remaining to take such action will start to run on the date of the mailing of the decision granting the substitution request.
Reference: For more information on timelines for a substitute claimant to take action, see 38 CFR 3.1010(f)(3).
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VIII.2.3.b. Submission of Evidence and Other Rights Afforded to the Substitute Claimant |
A substitute claimant has the same rights as would have applied to the original claimant had he or she not died, including the rights regarding
References: For more information on
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VIII.2.3.c. Rights Not Afforded to the Substitute Claimant |
Rights that may have applied to the claimant prior to death but which cannot practically apply to a substitute are not available to the substitute.
Example: Medical examinations.
Reference: For more information on the rights not afforded to the substitute claimant, see 38 CFR 3.1010(f)(3).
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VIII.2.3.d. Expansion of the Claim |
The substitute claimant may not
Note: The substitute claimant may raise new theories of entitlement in support of the claim.
Reference: For more information on the expansion of the claim, see 38 CFR 3.1010(f)(2).
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VIII.2.3.j. Example of Calculating the Time Limit to Have Evidence Considered When a HLR is Pending |
Situation:
Result: Even though the surviving spouse submitted evidence related to the right hip condition, it cannot be considered in the HLR determination. Therefore, the spouse has until 6/15/2020 to withdraw the request for a HLR and submit a supplemental claim in order to have that evidence considered (assuming the HLR does not get completed prior to that date). Otherwise, the spouse would have one year from the date of the HLR determination to submit a supplemental claim.
Important: 38 CFR 3.2500 states that a supplemental claim can be submitted at any time; however, if a supplemental claim is not received within one year of the prior decision, it will not be considered a continuously pursued claim and therefore the earliest effective date would be date of receipt of the supplemental claim, which would be after the Veteran’s date of death; therefore, impossible to grant.
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Historical_M21-1VIII_2_2-24-17.docx | May 18, 2019 | 65 KB |
1-26-17_Key-Changes-M21-1VIII_2.docx | May 18, 2019 | 59 KB |
Historical_M21-1VIII_2_1-26-17.docx | May 18, 2019 | 71 KB |
Historical-M21-1VIII_2_7-28-15.docx | May 18, 2019 | 61 KB |
2-19-19_Key-Changes_M21-1VIII_2.docx | May 18, 2019 | 50 KB |
Change-July-28-2015-Transmittal-Sheet-M21-1VIII_2_TS.docx | May 18, 2019 | 41 KB |
2-24-17_Key-Changes_M21-1-VIII_2.docx | May 18, 2019 | 52 KB |
03_01_06.doc | May 18, 2019 | 28 KB |
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