The Big Myth - a Veteran's claim does NOT die with the Veteran.

Military Funeral Taps“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).

Accrued Benefits.

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.

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. 

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. 

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 typically does not involve an interpretation - or misinterpretation - of a 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 claim for DIC - 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.

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Other Posts on the Veterans Law Blog that you might like:

What are all these New Blog Categories (Shoot, Move and Communicate) about? 

Court's Holding in Quattlebaum brings GREAT news to Veterans Survivors!

DRO or No-DRO: Which is Faster in a VA Appeal?

Find out how to get the MOST IMPORTANT Document in Your VA Claim.

Breaking out of the Prison of Your VA Experience.

Before you hire an attorney for your VA Claim,
I want you to read this FREE eBook.

 

hiring a VA Disability Claim Attorney

Get my FREE Checklist of questions to ask when Interviewing Attorneys for your  VA Claim.

 

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By Chris Attig 

 

Categories: #1 Shoot

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marelen branum says:

Mr. Attig, Your informative comments and prior unknown possibilities for alternate avenues to pursue regarding Survivors Benefits is of value as well as offering a ‘sense of hope’ still within view, is emotionally provocative to myself and surely to others,whom before finding you, simply had none. Might I ask, what, if any, additional cauldron ingredient role does being stationed at ‘Camp LeJeune’ prior to deployment (both of us lived in housing, where we experienced our first miscarriage) play in the suspect manner which spouses and children have suffered and/or perished from???!!! Can you address this subject? Thank you and thank God for you, and your frontline troops. Marelen Branum

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