Substitution of Claimant

If a VA claimant dies (after October 10, 2008) and a VA benefit is pending, a living person eligible to receive accrued benefits may file a request to be substituted for the deceased claimant.

Veterans often wait years to receive VA benefits. All claims to benefits used to end with the veteran’s death, but a new law allows family members to step in. The relative of the veteran who would have been a dependent beneficiary may file a claim to substitute for the veteran and continue the process of completing the claim.

The request must be filed with the VA not later than one year after the claimant’s death.

To request that you, the dependent spouse or another family member be allowed to act on behalf of the deceased veteran is very simple.

As with almost every action that you will perform with the VA, you should write a letter to the VA Regional Office (VARO) that maintains the veterans claims folder.

If you aren’t sure which one that is, click here.

Writing a simple letter is always easiest when communicating with the VA. The letter should be as simple and short as you can make it. Always use certified mail, return receipt requested, to communicate to the VA.

Click here for examples of letters you may need to write to the VA.

The VA issued a bulletin about this in 2010. It tells the Regional Offices:

Section 212. SUBSTITUTION UPON DEATH OF CLAIMANT.

This section creates a new statute: 38 U.S.C. § 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.

Effective Date- The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008.

VBA Action: Regulations will be revised to include the new provision. Pending regulatory change, for requests to be substituted for a deceased claimant:

A written claim for substitution must be filed within one year of the date of death of the claimant whose claim is at issue.

The claimant who requests to be substituted must be someone who would be eligible under 38 CFR 3.1000, Entitlement under 38 U.S.C. § 5121 to benefits due and unpaid upon death of a beneficiary.

Continue adjudication of the claim as if the original claimant was not deceased.

If evidence required to substantiate the claim cannot be obtained due to the original claimant’s death, the claim shall be rated based on the evidence of record. If an examination is required, consider 38 CFR § 3.655, Failure to report for Department of Veterans Affairs examination.

The date of claim for the request for substitution will be the date the written request for substitution is received in VA.

Any representation by a service organization, attorney or agent prior to death does not transfer to the substituted representative.
If the individual desires representation he/she must execute a new power of attorney. When a request for substitution is received the new claimant should be advised of this fact.

While all this may seem to be very complex, it’s really very simple.

If your veteran dies and you have questions or concerns about any benefits that you may be eligible for, your first step should be to write to the VA Regional Office.

Don’t waste time trying to call the VA or asking friends for advice. A letter to VA will get the answers you need so you can move forward.