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M21-1, Part VIII, Chapter 3 – Development for Accrued and Requests for Substitution

Overview


In This Chapter

This chapter contains the following topics:
Topic
Topic Name
1
2
3
4
5

1.  Applications for Accrued and Requests for Substitution


Introduction

This topic contains information on developing for accrued benefits, including

Change Date

February 19, 2019

VIII.3.1.a.  Applications for Accrued Benefits

A claim for accrued benefits may be filed on the following applications:
Note:  If the claimant submits a VA Form 21P-534EZ and does not check the accrued box in Block 16, VA is still obligated to address the claimant’s entitlement to accrued benefits under 38 CFR 3.152(b).

VIII.3.1.b.  Applications for a Request to Substitute

A standard application is not required to request to substitute.  A request to substitute, from an individual in the categories of eligible persons, is deemed to be included when VA receives a
  • claim for
    • accrued benefits
    • Survivors Pension, or
    • Dependency and Indemnity Compensation (DIC), or
  • a written request to substitute containing the
    • intent to substitute
    • name of the person requesting to substitute
    • name of the deceased claimant, and
    • deceased claimant’s
      • claim number
      • Social Security number, or
      • appeal number.
Exception:   When an accrued claim is received that does not indicate a request to substitute, and there is not a pending claim or appeal pending, do not address substitution.
References:  For more information on

VIII.3.1.c.  Action to Take When Accrued Benefits Exist but No Claim Is Filed

If an accrued claim is not filed and accrued benefits exist, or an initial claim, decision review request, or appeal is pending, VA has an obligation to notify those individuals who are potentially entitled to the benefits.  Send VA Form 21P-601 to the
  • surviving spouse, child or children, or parents of the Veteran, in the order named, if in existence, or
  • person(s) who paid for, or are responsible to pay, the expenses of last illness and/or burial of a beneficiary, if it appears that no person is entitled to benefits by relationship.
Note:  Send VA Form 21P-0847 in lieu of VA Form 21P-601 when there is no evidence of accrued benefits and an initial claim, request for decision review or legacy appeal was pending at the time of the original claimant’s death.  For language to include in the letter when mailing out VA Form 21P-0847, see M21-1, Part VIII, 3.1.g.
References:  For more information on

VIII.3.1.d.  Information to Include on Notification Document With VA Form 21-601 or VA Form 21-0847

On the notification document, with VA Form 21P-601 or VA Form 21P-0847
  • refer the claimant to the instructions attached to VA Form 21P-601 or VA From 21P-0847 for information on the
    • time limits to apply for accrued benefits
    • if applicable, time limits to request substitution, and
    • evidence to submit with the claim, and
  • if applicable, state the approximate amount of accrued benefits due and payable if known.

VIII.3.1.e.  Application Filing Time Limits

Use the table below to determine the proper time limit for applying for accrued benefits.
If …
Then …
accrued benefits are payable other than
the claimant, within one year of the original claimant’s death, must submit the accrued application.
The one-year limitation for filing a claim for accrued benefits also applies to cases in which a
  • rating or authorization decision was made prior to the date of death, or
  • claim, higher-level review (HLR), or a legacy appeal was pending and evidence sufficient to allow that claim, HLR,  or legacy appeal was in file at the date of death.
an accrued lump sum is payable under38 CFR 3.1001
the application must be filed within five years of the Veteran’s death.
only proceeds of returned and canceled checks are payable under 38 CFR 3.1003
there is no time limit for filing a claim.

VIII.3.1.f.  Request for Substitution Time Limits

A person may not substitute for a deceased claimant unless the person files a request to substitute no later than one year after the claimant’s death.

VIII.3.1.g.  Language for Request for Substitution Letters When Sending VA Form 21P-0847

Use the following language when notifying a claimant of a pending claim, request for decision review or appeal and there is no evidence of accrued benefits:
[Insert original claimant’s name] had a claimm higher-level review or appeal pending at the time of [insert his or her] death.  A person eligible for accrued benefits may request to substitute for a deceased claimant who had a pending claim or appeal at the time of his or her death.  Substitution may allow a person to submit evidence in support of the pending claim or appeal for potential accrued benefits.  If you wish to file a request for substitution and have not already done so, please complete and return VA Form 21P-0847 as indicated in the instructions undre, “Where Do I Send My Completed Form/”.  We will make a determination at that time whether you are eligible to substitute.  The request to substitute must be received within one year of the deceased claimant’s death.

2.  Section 5103 Notices


Change Date
February 19, 2019

VIII.3.2.a.  When to Send Section 5103 Notice

VA has a duty to assist claimants in obtaining evidence as required by the Veterans Claims Assistance Act of 2000, Public Law (PL) 106-475.  This includes sending the claimant a Section 5103 notice letter.
For accrued or substitution claims, a Section 5103 notice letter may be required for two reasons:
  • if development is needed in support of a claim that was pending at the time of the original claimant’s death,
  • a supplemental claim that originates from a Section 5103 error discovered upon an HLR, or
  • if development is needed in support of the accrued claim such as
    • proof of death
    • proof of payment, and
    • other evidence needed specific to support eligibility.
References:  For more information on

3.  Development for Eligibility of Accrued Benefits and the Right to Substitution


Introduction

This topic contains information on developing for eligibility of accrued benefits and the right to substitution, including

Change Date

February 19, 2019

VIII.3.3.a.Definition:  Evidence Needed to Complete the Application for Accrued Benefits

Evidence needed to complete the application for accrued benefits means information necessary to establish that
  • the claimant is within the category of eligible persons, and
  • circumstances exist which make the claimant the specific person entitled to the accrued benefit.

VIII.3.3.b.  Definition:  Evidence Needed to Complete the Request to Substitute

Evidence needed to complete the request to substitute means information necessary to establish
  • the claimant is
    • in the categories of eligible persons, and
    • first in priority order, and
  • proof of payment, if the claim is based on reimbursement.
Note:  If the information is not available, do not develop the original claimant’s claim.

VIII.3.3.c.  When to Deny Accrued or Substitution Claims Without Development

It is not required to issue development when
  • accrued benefits do not exist
  • there is a lack of legal eligibility
  • the claim lacks merit, or
  • the claimant is not entitled to the benefit as a matter of law.
Reference:  For more information on VA’s duty to assist, see M21-1, Part I, 1.A –C.

VIII.3.3.d.  Notification Requirements for Accrued Claims

If claimant did not provide evidence of eligibility, notify the claimant
  • of the type of information required to complete the application
  • that VA will take no further action on the claim unless VA receives the required information, and
  • that if VA does not receive the required information within one year of the date of the original VA notification of information required, no benefits will be awarded on the basis of that application.

VIII.3.3.e.  Notification Requirements for Requests for Substitution 

If a person’s request to substitute does not include evidence of eligibility when it is originally submitted and the person may be an eligible person, notify the person
  • of the evidence of eligibility required to complete the request to substitute
  • that VA will take no further action on the request to substitute unless the evidence of eligibility is received, and
  • that VA must receive the evidence of eligibility no later than 60 days after the date of notification or 1 year after the claimant’s death, whichever is later, or VA will deny the request to substitute.

VIII.3.3.f.  Time Limits for Evidence of  Eligibility

Use the table below to determine the proper time limit for receiving evidence of eligibility after initial notification.
If the claim is…
Then VA must receive the evidence of eligibility…
accrued
within one year of the date of the original VA notification.
a request for substitution
the later date of the following:
  • 60 days after the date of the original VA notification, or
  • within one year of the claimants death.
Reference:  For more information on timelines and examples of timelines for substitute claimants to take action, see M21-1, Part VIII, 2.3.

VIII.3.3.g.  First Notification in Requests for Substitution

The denial or grant of substitution should be included simultaneously with the earliest notification to the substitute claimant, including the
  • first development notice required in the original claimant’s claim, when substitution has been granted, including but not limited to the
    • Section 5103 notice
    • statement of the case (SOC)
    • supplemental statement of the case, or
    • development letter, or
  • denial or grant of accrued benefits.

VIII.3.3.h.  Example 1: Denial of a Not Timely Filed Response in a Request for Substitution With a Timely Response in an Accrued Claim 

Situation:
  • On 01/14/2014, the Veteran files a claim for coronary artery disease.
  • On 07/01/2014, VA issues the Veteran a notice granting the coronary artery disease at 50 percent.
  • On 08/13/2014, the Veteran dies.
  • On 06/01/2015, VA receives an accrued claim, however, evidence of eligibility was not of record.
  • On 09/01/2015, VA issues a notification to the claimant advising that evidence of eligibility is not of record.  The claimant is provided 60 days to submit the information for the request for substitution and 1 year for the accrued claim.
  • On 12/22/2015, VA receives evidence of eligibility.
Result:
Work the accrued claim based on the evidence of the file, as the evidence was received timely, granting or denying accrued based on evidence.  Upon final action of the claim, deny the request for substitution as the evidence of eligibility was not timely filed.

VIII.3.3.i.  Example 2:  Timely Filed Response for Substitution and Accrued Claim
Situation:
This situation is similar to Example 1, except VA receives the evidence of eligibility on 10/01/2015.
Result:
Take the following actions:
  • grant the substitution request and notify the substitute claimant that the
    • Veteran was granted 50 percent for coronary artery disease
    • date the decision was mailed to the Veteran,
    • remaining time the Veteran has to appeal and provide the applicable appeal language and notifications, and
  • deny or grant the accrued benefits, providing the applicable appeal language and notifications.
Reference:  For more information on the applicable appeal language to provide, see M21-1, Part VIII, 3.3.m.

VIII.3.3.j.  Example 3: Not Timely Filed Response in an Accrued Claim and Request for Substitution
Situation:
This situation is similar to Example 1, except VA receives the evidence of eligibility on 12/18/2016.
Result:
Deny the accrued claim and the request to substitute as the evidence of eligibility was not timely filed.

VIII.3.3.k.  Language to Use When Denying the Request to Substitute

Use the following language for denying a request to substitute:
[Insert in the What We Decided section]
We denied your request to substitute.
[Insert one of the following in the How Did We Make Our Decisionsection]
We cannot approve your request to substitute because the there was no pending claim, higher-level review, or appeal at the time of the deceased claimant’s death.
Or
We cannot approve your request to substitute because the evidence does not show you are an eligible claimant.
Or
We cannot approve your request to substitute because the evidence does not show you filed your request to substitute within one year of the deceased claimant’s death.

VIII.3.3.l.  Discussion of Findings When Denying the Request to Substitute

There are only three issues at hand concerning the denial of a request to substitute:
  • whether there was a claim, request for decision review, or appeal pending at the time of the deceased claimant’s death,
  • whether evidence of eligibility has been received, and
  • whether the request was submitted timely.
 Therefore, any findings listed on a decision to deny the request to substitute should be limited to these three findings.
Note:  38 CFR 3.1010 is the applicable law in this case.

VIII.3.3.m.  The Right to Appeal the Request to Substitute Decision

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) and7105.
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.
Reference:  For more information on decision review options, see M21-1, Part III, Subpart iv, 2.B.3.

4.  Development of the Original Claimant’s Pending Claim, HLR or Appeal in Grants of Substitution


Introduction

This topic contains information on development for pending claims after a grant of substitution, including

Change Date

February 19, 2019

VIII.3.4.a.  When Development, Including the Section 5103 Notice, Is Required

Additional development is required if
  • a Section 5103 notice for the original claimant’s claim was
    • not sent, or
    • inadequate
    • original claimant requested assistance with obtaining, or
    • substitute claimant requested assistance with obtaining, or
  • a duty to assist error is discovered upon a HLR and the maximum benefit cannot be granted, or
  • sending a development letter for which a Section 5103 notice does not apply if the Section 5103 notice was (for example, a pension income adjustment)
    • not sent, or
    • inadequate.
Note:  If an adequate notice was sent to the original claimant and had not expired at the time of death, reissue the notice.  Provide only the amount of time that was remaining on the original claimant’s notice at the time of his or her death.

VIII.3.4.b.  When Development, Including the Section 5103 Notice, Is Not Required

Additional development is not required if it is determined all development actions have been completed during the original claimant’s lifetime and it is determined the original claimant
  • received an adequate Section 5103 notice and the pending claim(s) was/were
    • decided during his/her lifetime, but the claim(s) is/are not finally adjudicated, or
    • not decided during his or her lifetime
  • submitted the claim on an EZ form, or
  • submitted a claim in which
    • the Section 5103 notice does not apply (for example, a pension income adjustment, a request for a HLR, or a supplemental claim received within one year of the initial claim), and
    • adequate development was sent to the original claimant.
Reference:  For more information on finally adjudicated claims, see M21-1, Part III, Subpart iv, 2.B.1.c.

VIII.3.4.c.  When the Development Control Period Has Expired or Necessary Evidence Is Received

If development was necessary, review the claim again when the development control period has expired, or the necessary evidence is received, whichever is earlier, and take the following actions:
  • if there is a rating issue, forward the claim to the rating activity before adjudicating the claim, or
  • if there is not a rating issue, adjudicate the claim.
References:  For more information on

VIII.3.4.d.  Language to Include in the First Development Letter If the Applicant Did Not Specifically Request Substitution

Use the following language in the first development letter if the application did not specifically request substitution:
If the applicant did not specifically request substitutionand …
Then insert the following language…
there was a pending claim or appeal at the time of the original claimant’s death
VA has received your claim for accrued benefits and accepted this claim as a request for substitution for the purpose of completing[insert original claimant’s name] [insert claim or appeal]pending at the time of death.  The request for substitution allows you to submit additional evidence in support of the pending [insert claim or appeal]. We have granted the request for substitution.
there was a pending HLR at the time of the original claimant’s death
VA has received your claim for accrued benefits and accepted your claim as a request for substitution for the purposes of processing[insert original claimant’s name] higher-level review pending at the time of death.  Additional evidence cannot be considered in a higher-level review decision.  However, any additional evidence submitted will remain in the evidentiary record and be considered upon timely receipt of supplemental claim, or appeal to the Board of Veterans’ Appeals after the higher-level review has been processed or withdrawn.  We have granted the request for substitution.

VIII.3.4.e.  Language to Include in the First Development Letter If The Applicant Requested Substitution and It Is Granted Upon First Review

Use the following if the applicant requested substitution and it is granted upon first review by VA]
We have granted the request for substitution.  The request for substitution allows you to submit additional evidence in support of the pending [insert claim or appeal] to determine your entitlement to [insert the word “additional” if some accrued benefits have been paid] accrued benefits

VIII.3.4.f.  Language to Include in the First Development Letter In The How Soon Should You Send What We Need Section

Use the following language in the How Soon Should You Send What We Needsection in the first development letter:
If the letter is …
Then insert the following language in the How Soon Should You Send What We Need section …
a new Section 5103 notice
We strongly encourage you to send any information or evidence as soon as you can.  As a substitute claimant for the deceased claimant’s claim, you must complete any action required within the time period remaining for the deceased claimant to take such action on the date of his or her death.  If we do not hear from you, we may make a decision on your claim after 30 days. However, you have up to one year from[insert the date of the Section 5103 notice] to submit the information and evidence necessary to support your claim.  If we decide your claim before one year from the date of this letter, you will still have the remainder of the one-year period to submit a supplemental claim along with the additional information or evidence necessary to support your claim.
reissuing the Section 5103 notice when the notice to the original claimant had not yet expired
We strongly encourage you to send any information or evidence as soon as you can.  As a substitute claimant for the deceased claimant’s claim, you must complete any action required within the time period remaining for the deceased claimant to take such action on the date of his or her death.  If we do not hear from you, we may make a decision on your claim after [insert number of days remaining on the original claimant’s Section 5103 notice] days.  However, you have up to one year from [insert the number of days remaining in the 1 year time period after the date of the original Section 5103 notice]to submit the information and evidence necessary to support your claim.

VIII.3.4.g.  Language to Include When the First Notice of a Grant of Substitution Is Included in a Legacy Appeal Notification Letter

Use the following language when the first notice of a grant of substitution is included in a legacy appeals notification letter.
If there is … Then include the following language …
an accrued claim VA accepted your claim for accrued benefits as a request for substitution for the purposes of processing [insert original claimant’s name] pending appeal to completion.  VA has granted the request for substitution.
a claim for substitution VA has granted the request for substitution.  VA has granted the request for substitution. 

For all first notice of a grant of substitution for legacy appeals notification letter, include the following language:

We received [insert original claimant’s name] written notice of disagreement with the Department of Veterans Affairs (VA) decision of[insert date].  The following are the rights and responsibilities extended to you as the substitute claimant. This letter describes what happens next.


VIII.3.4.h.  Language to Include For the First Notice When There Is Time Remaining to File a Legacy Appeal

When granting the request for substitution and time remains to file a legacy appeal after the issuance of a Statement of the Case, include the following language in the notice:
[Insert original claimant’s name] had a pending appeal at the time of death.  We issued a Statement of the Case to [insert original claimant’s name] on [insert date].  If you desire to continue this appeal, you must let us know by stating on VA Form 9 which specific fact or law cited you believe to be in error and for what issue.  We must receive this request by [insert date].  We have enclosed VA Form 9, Appeal to Board of Veterans’ Appeals, to assist you in filing the appeal.
Important:  Ensure the VA SOC/SSOC Opt-In Fact Sheet is included in the notice.

VIII.3.4.i.  Substitution Waiver Language to Include in All Development Letters If Not Previously Included

Use the following substitution waiver language if not previously included:
The right to substitute may be waived by submitting the request in writing.  If the right to substitute is waived, VA may still consider the accrued claim, however, will do so based only on the evidence contained in the claims folder at the time of the original claimant’s death.

5.  Updating Legacy Appeals After a Grant of Substitution


Change Date

February 19, 2019

VIII.3.5.a.  Updating the VACOLS Record for Legacy Appeals

Upon the grant of a request of substitution, update the Veterans Appeals Control and Locator System (VACOLS) record if the original claimant had a pending
  • legacy notice of disagreement (NOD), or
  • legacy appeal.
Note:  A substitute claimant may also file a legacy NOD following notice of the deceased claimant’s claim that was rendered prior to February 19, 2019.  In these cases, enter the legacy NOD as a substitute claimant.  For decisions made on or after February 19, 2019, substitute claimants may pursue a decision review option.
References:  For information on
2-19-19_Key-Changes_M21-1VIII_3.docx May 18, 2019 73 KB
Historical_M21-1VIII_3_7-28-15.doc May 18, 2019 166 KB
Change-July-28-2015-Transmittal-Sheet-M21-1VIII_3_TS.docx May 18, 2019 42 KB
Historical_M21-1MRIV_ii_2_secF_3-24-2015.docx May 18, 2019 83 KB
03_01_06.doc May 18, 2019 28 KB
3-20-17_Key-Changes_M21-1-VIII_3.docx May 18, 2019 68 KB
Change-May-18-2015-Transmittal-Sheet-M21-1MRVIII_3_TS.docx May 18, 2019 39 KB
pt08_ch03_TS_1-13-10.doc May 18, 2019 39 KB
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