Veterans Disability Compensation: Debunking the Myth that a Veteran’s claim dies with the Veteran.By Chris Attig | Permalink
November 21st in Survivors: DIC and Accrued Benefits, VA Benefits.
“The Veteran’s claim dies with the Veteran” is one of those Myths that is repeated so often that at some point it often becomes the truth for many folks. Unfortunately, this Myth is not the law – at least not the entire law.
As with most Myths, there is a morsel of truth in the statement. And as with most Myths, this one has also become a self-fulfilling prophesy for so many Veterans’ claims for disability compensation: many Veterans’ claims do die with the Veteran only because the Veteran’s spouse or surviving child was told, and believed, the Myth.
So how can a surviving spouse or surviving child continue the Veteran’s claim after they die. Here are a couple ways that a Veteran’s Disability Compensation Claim survives the death of the Veteran (there are others, but these are the major ways).
1. Accrued Benefits. You can read more about an “accrued benefits” claim in a separate informational blog entry of the Attig Law Firm by clicking here. In a nutshell, when a Veteran dies, the “value” of his or her pending claims are considered “accrued benefits”.
An application for Dependency and Indemnity Compensation (DIC), an application for Death Pension, and an application for any survivor benefits to the Social Security Administration (regardless of whether the survivor sent the SSA Survivor Benefit Application to the VA) is considered an application for “accrued benefits”.
Here are a couple of points about the Accrued Benefits Claim:
a. The application for accrued benefits must be filed within one (1) year of the death of the Veteran. The Court of Appeals for Veterans Claims has the ability to issue decisions and make rulings based on “equity”, which in theory includes the idea that there may be some set of reasons which allow the one-year deadline to be “equitably tolled”.
b. The accrued benefits claim will, generally speaking, be decided based on the evidence physically in the record at the time of the Veteran’s death, or that constructively in the record at the time of the Veteran’s death. Evidence is “constructively” in the record if it is not in the C-File, but is in the possession of the VA on/before the date of the Veteran’s death. An accrued benefits claim can be remanded and/or reopened for additional evidence to support the claim.
2. Substitution If the Veteran dies on/after October 10, 2008, an “eligible person” may substitute as the Veteran for purpose of processing the Veteran’s pending claim to completion. As with any statute, interpretations of certain words and phrases are vital. A “pending claim” is An “eligible person” is defined, in the Veterans Benefits Improvement Act of 2008, as “a living person who would be eligible to receive accrued benefits due to the Veteran under 38 U.S.C. § 5121(a). The “eligible person” has one (1) year from the death of the Veteran to file a Motion for Substitution. When and where and how an “eligible person” may substitute for the Veteran is rather complicated and tricky, and beyond the scope of this informational blog post. A good case to read, if you are so inclined, is the Court of Appeals Decision in Breedlove v. Shinseki, 24 Vet.App. 7 (August 10, 2010); while not the most artfully written decision, it does provide a moderately accessible primer into the law of substitution. If you believe that you are entitled to substitute for a Veteran in their claim after the death of the Veteran, it is best to consult with an attorney that has experience handling Veteran’s disability claims and survivor benefit and substitution claims for Veterans.
3. CLEAR AND UNMISTAKEABLE ERROR (CUE). “CUE” claims are another way that a Veteran’s claim might survive his or her death. A CUE claim is specific kind of error – one which is so clear that reasonable minds could not differ in reaching a particular conclusion, and one where the result would have been manifestly different but for the error. A CUE claim is often not a claim involving interpretation of fact (although it can be); more commonly it is an administrative failure to apply the proper statutory and regulatory provisions to the correct and relevant facts.
A surviving spouse will often file a DIC claim – Dependency and Indemnity Compensation – after the death of their Veteran Spouse; if the VA denies this DIC claim on grounds related to a prior unsuccessful claim of the Veteran (commonly, a prior denial of service-connection for a condition which later played a role in the Veteran’s death), then the Surviving Spouse can properly assert, in the context of the surviving spouse’s own DIC claim, that a prior decision denying the Veteran’s claim was the product of “clear and unmistakeable error”, or “CUE”. The spouse’s argument, plainly stated, is that but for the CUE of the VA or BVA in a prior decision related to the Veterans’ claim, the Spouse would be entitled to DIC benefits.
The Attig Law Firm represents U.S. Veterans who have been denied benefits in their VA Disability claims for compensation due to injuries or diseases incurred during military service. The Firm currently represents peace-time and war-time veterans of all branches of the military, at all levels of the VA disability claim process (VA Regional Office, Board of Veterans’ Appeals, and the Court of Appeals for Veterans’ Claims). Contact the Attig Law Firm if you would like to discuss your claim for disability benefits before the VA.
No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the Veteran, some power. This information is not widely or easily accessible to Veterans. The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case. Likewise, their may be information that is applicable to your case that is not provided on this Veterans Disability Compensation Blog.
It is very important that we note that each and every Veteran’s claim is different. Just because we were able to secure substantial past-due benefits for one Veteran does not mean or imply that we will be able to do so for you. In some cases, we may not be able to secure you any financial compensation due to the facts of your particular case.
It is best to consult with a lawyer familiar with VA Disability claims to examine your particular claim. If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appeals, contact the Attig Law Firm, PLLC, for a free consultation with a VA Disability attorney.
VA Disability attorneys at the Attig Law Firm, PLLC, represent Veterans in their VA Disability Claims not only in Texas, Arkansas, Oklahoma, and New Mexico, but in VA Disability Claims all around the United States, Puerto Rico, and even overseas Veterans in their claims for disability compensation from the Department of Veterans Affairs.