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Does a VA Pension Claim Die With the Claimant?

Thankfully, a VA Pension claim does not die with the claimant…for the most part.  The VA has finally published a final rule on the concept of “Substitution” which allows an eligible surviving family member to stand in the shoes of the deceased claimant and finish a pending claim. The rule has been in the United States Code for several years, but regulations had not yet been passed. See 38 U.S.C. §5121A.
When formally published in the Code of Federal Regulations the Substitution regulations will be located at 38 CFR §3.1010.  The link to the final rule is: http://www.gpo.gov/fdsys/pkg/FR-2014-09-05/html/2014-21139.htm and has an effective date of October 6, 2014.
Who is an eligible surviving family member?
38 CFR §3.1000(a)(1) – (5) lists those who are eligible to stand in the shoes of the claimant.  Upon the death of the Veteran, the following are eligible to finish out the claim in order of priority:

1.    A surviving spouse
2.    A dependent child or children in equal shares (as the VA defines dependent)
3.    Dependent parents of the veteran
Only one person out of the eligible class will be allowed to serve at one time.  The remaining sections of 38 CFR §3.1000(a)(1) – (5) list who may serve upon the death of the person substituting for the Veteran.
Time limits for filing a Substitution claim and initial showing
A claim must be filed within one year of the claimant’s death.  The claim must be in writing.  VA Form 21-0847 may be used, and is specifically designated as  “Request for Substitution of Claimant Upon Death of Claimant.”  The person filing the claim must show that he or she is an eligible person to serve as a substitute for the claimant.  The VA must then approve the substitution claim.  Once approved, the substituted claimant may continue the case to completion, even if the case is already at the appeal stage.
What if there are no eligible family members?
If there is no surviving spouse, dependent child or dependent parent, then a substitution claim cannot be filed.  The only other option would be to file a clam for accrued benefits to reimburse anyone who paid for the veteran’s last sickness or burial.  38 C.F.R. §31000(a)(1).
Accrued benefits
Accrued benefits may be paid to the same class of individuals as who are eligible to serve as a substitute claimant – a surviving spouse, dependent child or dependent parent.  However, there is one major difference between accrued benefits and substitution – there must have been enough information in the file at the time of the claimant’s death to award the benefit.  Except for a claim for reimbursement for final expenses, the following requirements must be met:
1)    The accrued benefits claimant is one of the approved family members;
2)    A claim for VA benefits was pending when the original claimant died, or the benefits were awarded but unpaid at death, or entitlement is shown from an existing rating or decision;
3)    An application for accrued benefits was filed within 1 year of the claimant’s death; and
4)    Evidence in the file shows that the deceased was entitled to the benefit.
Substitution provides an important advantage over accrued benefits as it allows a pending claim that may even be in the beginning stages, to be finished by a substitute claimant.  Substitution is also allowed when an appeal has been filed but not decided.  Unfortunately there must be an eligible family member to serve as a substitute for the deceased claimant, and an adult healthy child will not be able to do so even if the surviving spouse is deceased.

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