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M21-1, Part VIII, Chapter 2 – Substitution in Case of Death of Claimant

Overview


In This Chapter

This chapter contains the following topics:
Topic  
Topic Name
1
2
3

1.  General Information on Requests to Substitute


Introduction

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

Change Date

February 19, 2019

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:
  • The monetary benefit sought in the request for substitution is accrued benefits.
  • Substitution applies to the same benefits for which accrued benefits are payable, i.e., periodic monetary benefits (other than insurance and Servicemember’s indemnity) such as compensation, pension, Dependency and Indemnity Compensation (DIC), and Chapter 18 benefits.
References:  For more information on

VIII.2.1.b.  Definition:  Original Claimant

An original claimant is the deceased claimant whose claim, decision review request, or appeal of an adverse decision on the claim was pending when he or she died.

VIII.2.1.c.  Definition: Substitute Claimant

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
  • will automatically be considered as requesting to substitute, and
  • may be able to submit additional evidence in support of the initial claim, supplemental claim, request for higher-level review (HLR), or appeal.
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.
.
References:  For more information on

VIII.2.1.d.  Definition:  Joint Class

Joint Class is a group of two or more individuals in which each individual is an eligible substitute of the same preference such as
  • two or more surviving children
  • two surviving parents, or
  • two or more persons who bore the expense of last sickness or burial.

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


2.  Eligibility to Request Substitution


Introduction

This topic contains information on eligibility to request substitution, including

Change Date

February 19, 2019

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
  • among the categories of eligible persons, and
  • first in priority order.
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

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:
  • Upon the death of a Veteran to the living person first listed as follows:
    • his or her spouse
    • his or her children (in equal shares), or
    • his or her dependent parents (in equal shares) or the surviving parent.
  • Upon the death of a surviving spouse or remarried surviving spouse, to the Veteran’s children.
  • Upon the death of a child, to the surviving children of the Veteran entitled to death pension, compensation, or dependency and indemnity compensation.
  • Upon the death of a child claiming benefits under chapter 18 of this title, to the surviving parents.
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

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
  • in a lower category, or
  • who bore the expense of last sickness or burial.
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).

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
  • another member of the same joint class, or
  • a member of the next preferred class.
Reference:  For more information on death of a substitute claimant, see 38 CFR 3.1010(g)(5).

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).

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).

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

3.  Rights of the Substitute Claimant Following the Grant of Substitution


Introduction

This topic contains information on rights of the substitute claimant, including

Change Date

February 19, 2019

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).

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
  • hearings
  • representation
  • legacy appeals,
  • decision review options for a claim not finally adjudicated, and
  • submission of evidence.
References:  For more information on

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).

VIII.2.3.d.  Expansion of the Claim

The substitute claimant may not
  • add an issue to the claim, or
  • expand the claim.
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).

VIII.2.3.e.  Example:  Calculating the Time Limit When a Section 5103 Notice Was Not Sent to the Original Claimant

Situation:
  • On 04/01/2019 the VA received a claim for service connection (SC) for a right hip condition.
  • On 06/23/20159the Veteran died.  VA was unable to send the Section 5103 notice to the Veteran before he died.
Result:  Since the Section 5103 notice was not sent to the original claimant, allow the substitute claimant 30 days to submit evidence when providing the Section 5103 notice.

VIII.2.3.f.  Example:  Calculating the Time Limit When a Section 5103 Notice Sent to the Original Claimant Has Not Expired

Situation:
  • On 04/01/2019 the VA received a claim for SC for a right hip condition.
  • On 06/15/2019 the Veteran was sent an adequate Section 5103 notice on a pending claim for right hip condition.
  • On 06/23/2019 the Veteran died and prior to his death, no additional evidence was submitted that required development.
Result:  Since only 8 days have passed, at the time of the deceased claimant’s death, since the Section 5103 notice, allow the substitute claimant 22 days to submit evidence when providing a notice to the substitute claimant that the request for substitution has been granted.

VIII.2.3.g.  Example:  Calculating the Time Limit When a Section 5103 Notice Sent to the Original Claimant Has Expired

Situation:
  • On 04/01/2019, VA received a claim for SC for a right hip condition.
  • On 04/02/2019 the Veteran was sent an adequate Section 5103 notice on a pending claim for right hip condition.
  • On 06/23/2019 the Veteran died and prior to his death, no additional evidence was submitted that required development.
Result:  Since the full 30 days for the Section 5103 notice had passed, no additional time is required and a decision should be made on the right hip condition.  A decision notice should be sent to the substitute claimant.  The substitute claimant will receive the same rights as the Veteran would have received, but for his death, to submit a decision review request or to appeal the decision of the right hip condition.

VIII.2.3.h.  Example:  Calculating the Time Limit When the Legacy Appeal Period Has Not Expired

Situation:

  • On 04/01/2015 the VA received a claim for SC for a right hip condition.
  • On 06/15/2015 the Veteran was sent a decision letter denying SC for a right hip condition with appeal rights.
  • On 07/23/2015 the Veteran filed a notice of disagreement (NOD) with the denial of SC for a right hip condition.
  • On 08/15/2015 the Veteran died.  Prior to his death, no additional evidence requiring development was submitted nor was a substantive appeal submitted..
  • On 08/20/2015 the surviving spouse applied for DIC.
Result:  Since the appeal period is open and a timely NOD was filed, VA is obligated to issue an Statement of the Case (SOC).  The substitute claimant has the remainder of the appeal period (06/15/2016) or 60 days from the date an SOC is released whichever is later to submit a substantive appeal or additional evidence to support the appeal.

VIII.2.3.i.  Example:  Calculating the Time Limit When an SOC for a Legacy Appealwas Sent to the Claimant Has Not Expired

Situation:
  • On 04/01/2015 the VA received a claim for SC for a right hip condition.
  • On 06/15/2015 the Veteran was sent a decision letter denying SC for a right hip condition with appeals rights.
  • On 07/10/2015 the Veteran filed an NOD with the denial of SC for a right hip condition.
  • On 08/01/2015 the Veteran was sent an SOC for the right hip.
  • On 08/15/2015 the Veteran died.  Prior to his death, no additional evidence requiring development was submitted nor was a substantive appeal submitted.
  • On 08/20/2015 the surviving spouse applies for DIC.
Result:  Since the legacy appeal period is still open, the substitute claimant has the remainder of the appeal period (06/15/2016) or 60 days from the date the SOC was released (10/01/2015) whichever is later to submit a substantive appeal or additional evidence to support the legacy appeal.  The substitute claimant has until 06/15/2016 to file a substantive appeal or submit additional evidence to support the appeal.

VIII.2.3.j.  Example of Calculating the Time Limit to Have Evidence Considered When a HLR is Pending

Situation:
  • On 04/01/2019 the VA received a claim for SC for a right hip condition.
  • On 06/15/2019 the Veteran was sent a decision letter denying SC for a right hip condition with VA Form 20-0998.
  • On 07/10/2019 the Veteran requested to have an HLR conducted and request an informal conference.
  • On 07/23/2019 the Veteran dies before being able to conduct the informal conference.
  • On 10/18/2019 the surviving spouse applies for DIC and submits evidence in support of the right hip condition.
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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