For years, if a veteran died before their claim was decided… that was it. No decision was rendered and no ‘retro’ inured to their surviving family.
As I was reminded recently by Rick Gales, MOPH National VSO, all that changed for the better in October 2008 (thanks Rick!). Simply put: 38 U.S.C. 5121A — Substitution in case of death of claimant; (a) Substitution.—(1) If a claimant dies while a claim … is pending, a living person who would be eligible … may … file a request to be substituted as the claimant…. And for my wife and my ten-year old case (battle with the VA), that’s good news.
The actual change was the result of Senator Daniel Akaka’s bill (S.3023 from the 110th Congress), which became part of Public Law No: 110-389 (issued during October 2008), and entitled: Veterans’ Benefits Improvement Act of 2008.
Specifically, from the applicable sections: Title II–Modernization Of Department Of Veterans Affairs Disability Compensation System; Subtitle A–Benefits Matters; Sec. 212. Substitution upon death of claimant; (a) In General, Chapter 51 is amended by inserting after section 5121 the following new section: Sec. 5121A. Substitution in case of death of claimant; (a) Substitution; (1) If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion; (2) Any person seeking to be substituted for the claimant shall present evidence of the right to claim such status within such time as prescribed by the Secretary in regulations; (3) Substitution under this subsection shall be in accordance with such regulations as the Secretary may prescribe; (b) Limitation.–Those who are eligible to make a claim under this section shall be determined in accordance with section 5121 of this title; (b) Clerical Amendment.–The table of sections at the beginning of chapter 51 is amended by inserting after the item relating to section 5121 the following new item: 5121A. Substitution in case of death of claimant; (c) Effective Date.–Section 5121A of title 38, United States Code, as added by subsection (a), shall apply with respect to the claim of any claimant who dies on or after the date of the enactment of this Act.
As stated in this law: Those who are eligible to make a claim under this section shall be determined in accordance with section 5121 of this title.
How does section 5121 read (in part)…; §5121; Payment of certain accrued benefits upon death of a beneficiary; (a) … monetary benefits … to which an individual was entitled at death … shall, upon the death … be paid … to any other dependent or dependents of the veteran….; (2) Upon the death of a veteran, to the living person first listed below; (A) The veteran’s spouse; (B) The veteran’s children (in equal shares); (C) The veteran’s dependent parents (in equal shares); (3) Upon the death of a surviving spouse or remarried surviving spouse, to the children of the deceased veteran; (4) Upon the death of a child, to the surviving children of the veteran who are entitled to death compensation, dependency and indemnity compensation, or death pension; (5) Upon the death of a child claiming benefits under chapter 18 of this title, to the surviving parents; (6) In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial; (b) No part of any accrued benefits shall be used to reimburse any political subdivision of the United States for expenses incurred in the last sickness or burial of any beneficiary; (c) Applications for accrued benefits must be filed within one year after the date of death. If a claimant’s application is incomplete at the time it is originally submitted, the Secretary shall notify the claimant of the evidence necessary to complete the application. If such evidence is not received within one year from the date of such notification, no accrued benefits may be paid.
The Form necessary to substitute a claimant, “Request For Substitution Of Claimant Upon Death Of Claimant – VA Form 21-0847 (Jun 2009)”
General Information: 38 U.S.C. section 5121a, Substitution in case of death of claimant. It provides that if a claimant dies while a claim or appeal for any benefit under a law administered by the Secretary is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion. The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant’s claim.
Specific Instructions: Section 1 – In this section, give us the pertinent identifying information to include name, claim and/or social security numbers, and date of birth of the veteran; Section 2 – Provide us with the substituting claimants’ pertinent contact information to include name, address, contact numbers, and mail address; Where Do I Send My Completed Form? You can obtain the VA mailing address to send your completed, signed authorization by accessing our Internet website at http://www.va.gov/directory or in the government pages of your telephone book under “United States Government, Veterans.” You should make a copy of your signed authorization for your records before mailing it to VA. What If I Change My Mind? If you change your mind and do not want to be the substitute for the deceased claimant, write us a letter to revoke your request.
“If a claimant dies while a claim … is pending, a living person who would be eligible … may … file a request to be substituted as the claimant.”
By some accounts, we Vietnam veterans are dying at the same rate as our World War II brothers and sisters. By many accounts, our claim’s processing can go on for years; years we do not necessarily have. With the advent of 38 U.S.C. 5121A — Substitution in case of death of claimant — we now know our death does not need to stop our claims from being processed and our loved ones from receiving at least a small token of what they are entitled as a result of our service-connected injury or disease.