A question we often hear from our clients regards what happens to a claim that has not yet been decided or is still pending at his or her death. Fortunately, Congress recently changed the rules regarding how the Department of Veterans Affairs (VA) handles such claims. The rules are less clear for claims that are on appeal to the U.S. Court of Appeals for Veterans Claims.
Congress now allows for survivors of the person filing a claim (known as a “claimant”) to pick up the claim where the claimant left it upon his or her death if the claim is pending before VA at either the VA regional office (or Agency of Original Jurisdiction) or the Board of Veterans’ Appeals. This process is known as “substitution.” In effect, the survivor is permitted to continue pursuing the original claim at exactly the same point where it was upon the claimant’s death, and this allows VA to pay to the survivor any benefits that otherwise would have been paid to the original claimant. The law permitting substitution is at 38 U.S.C. § 5121A.
In order for VA to allow substitution, there are some basic requirements that must be met. First, a survivor must ask VA to be substituted for the deceased claimant within one year of death. If this deadline is missed, substitution will not be permitted. Second, the survivor must meet certain criteria to be deemed eligible. Generally, the survivor must be the deceased claimant’s legal spouse, a child, or a dependent parent. The full list of eligible persons is available at 38 U.S.C. § 5121(a).
The Court of Appeals for Veterans Claims has now decided that a survivor may be substituted in a case that is pending at the Court at the time of the claimant’s death.