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Updated Apr 23, 2024

In This Section
This section contains the following topics:
Topic  
Topic Name
1
2
3

1.  General Information on Requests to Substitute

Introduction
This topic contains general information on eligibility to accrued benefits, including

Change Date
February 24, 2022

XI.ii.3.B.1.a.  Definition:  Substitution in Case of Death of Claimant
Substitution is the right of a living person to submit additional evidence in support of the deceased claimant’s pending claim, request for decision review, or appeal of decision.
Notes:
  • The monetary benefit sought in the request for substitution is accrued benefits.
  • Substitution applies to the same benefits for which accrued benefits are payable, i.e., periodic monetary benefits (other than insurance and service member’s indemnity) such as compensation, pension, Dependency and Indemnity Compensation (DIC), and Chapter 18 benefits.
References:  For more information on

XI.ii.3.B.1.b.  Definition:  Original Claimant
An original claimant is the deceased claimant whose claim, decision review request, or appeal of an adverse decision on the claim was pending when they died.

XI.ii.3.B.1.c.  Definition: Substitute Claimant
A substitute claimant is an individual whom the Department of Veterans Affairs (VA) has recognized to replace the original claimant in a pending claim, decision review request, or pending appeal (i.e., a preferred eligible survivor).
Any eligible survivor submitting a claim for accrued benefits
  • will automatically be considered as requesting to substitute, and
  • may be able to submit additional evidence in support of the initial claim, supplemental claim, or appeal.
Note:  Although any eligible survivor can also be considered a substitute for a request for higher-level review (HLR), the evidentiary record remains closed when an HLR is requested.  Any evidence submitted while an HLR request is pending, either from the original claimant or the substitute, cannot be considered in the decision.  In order for the evidence to be considered, the substitute claimant can either withdraw the request for an HLR and submit a supplemental claim, or submit a supplemental claim upon completion of the HLR.
References:  For more information on

XI.ii.3.B.1.d.  Definition:  Joint Class
Joint class is a group of two or more individuals in which each individual is an eligible substitute of the same preference such as
  • two or more
    • surviving children, or
    • persons who bore the expense of last sickness or burial, or
  • two surviving parents.

XI.ii.3.B.1.e.  Right to Waive Substitution
A claimant may waive, in writing, the right to substitute.  In those instances, the accrued claim is processed solely based on evidence in the claims folder at the time of the original claimant’s death.
Per Reliford v. McDonald, 27 Vet.App. 297 (2015) VA has a duty to provide notification to eligible accrued benefits claimants of their right to waive substitution.  This notice should be provided in the substitution grant letter released to the substitute claimant.
References:  For more information on the

2.  Eligibility to Request Substitution

Introduction
This topic contains information on eligibility to request substitution, including

Change Date
April 23, 2024

XI.ii.3.B.2.a.  Eligibility to Substitute
A person filing a request to substitute must provide evidence of eligibility to substitute.  Evidence of eligibility means evidence demonstrating the person is
  • among the categories of eligible persons, and
  • first in priority order.
Note:  In order to stand in as a substitute claimant/appellant, the deceased must have died on or after October 10, 2008.
Reference:  For more information on the categories of eligible persons in requests for substitution, see

XI.ii.3.B.2.b.  Definition:  Categories of Eligible Persons
The categories of eligible persons apply to a person eligible for accrued payment based on relationship.  The following bullets provide a list of the eligible persons.
  • Upon the death of a Veteran to the living person first listed as follows.  The Veteran’s
    • spouse
    • children (in equal shares), or
    • dependent parents (in equal shares) or the surviving parent.
  • Upon the death of a surviving spouse or remarried surviving spouse, to the Veteran’s children.
  • Upon the death of a child, to the surviving children of the Veteran entitled to Survivors Pension, compensation, or DIC.
  • Upon the death of a child claiming benefits under Chapter 18 of this title, to the surviving parents.
Note:  In all other cases, only so much of the accrued benefit may be paid as necessary to reimburse the person who bore the expense of last sickness or burial.
References:  For more information on categories of eligible persons in

XI.ii.3.B.2.c.  Substitution by Subordinate Members Prohibited
Failure to timely file a request to substitute, or a waiver of the right to request substitution, by a person of preferred category of eligible person will not serve to vest the right to request substitution in a person
  • in a lower category, or
  • who bore the expense of last sickness or burial.
Note:  A failure to timely file or request waiver by a person(s) in a joint class will not serve to increase the amount payable to other persons in the class.
Reference:  For more information on the prohibition of substitution by subordinate members, see 38 CFR 3.1010(g)(4).

XI.ii.3.B.2.d.  Death of a Substitute Claimant
If a substitute claimant dies while a claim, decision review request, or appeal is pending, a request to continue the original claimant’s claim may be granted to
  • another member of the same joint class, or
  • a member of the next preferred class.
Reference:  For more information on death of a substitute claimant, see 38 CFR 3.1010(g)(5).

XI.ii.3.B.2.e.  Time Limit to File a Claim Based on Death of a Substitute Claimant
The request to substitute for a substitute claimant must be received no later than one year after the date of the substitute’s death (not the original claimant’s death).
Reference:  For more information on the time limit to file a claim based on the death of a substitute claimant, see 38 CFR 3.1010(g)(5).

XI.ii.3.B.2.f.  Evidence Requirements
Evidence is required to eliminate persons who have a higher status of preference only if the record indicates that a person survived the deceased beneficiary.  Otherwise, statements of record received by VA prior to the death of the Veteran or primary beneficiary are adequate.
Development procedures vary when soliciting for evidence to eliminate persons who have a higher status of preference.  Procedures are dependent on
  • the nature of the contest
  • the evidence of record
  • the availability of evidence, and
  • other factors.
Note:  Evidence received on or with an accrued benefits claim, such as a death certificate or information provided on VA Form 21P-601, Application for Accrued Amounts Due a Deceased Beneficiary, may be used to disqualify persons who would have had the same or higher status of preference.
Reference:  For more information on evidence requirements, see 38 CFR 3.1010(d).

XI.ii.3.B.2.g.  Right to Appeal the Denial of a Request to Substitute
A claimant has the right to appeal a denial of the request to substitute.  38 CFR 3.1010(e)(2) states the denial of a request to substitute may be appealed to the Board of Veterans’ Appeals pursuant to 38 U.S.C. 7104(a) and 7105.
However, for decisions concerning the right to substitute made on or after February 19, 2019, claimants have the right to appeal to the Board of Veterans’ Appeals or to request a decision review.  Therefore, the decision notice should include VA Form 20-0998, Your Right to Seek Review of Our Decision.
References:  For more information on

3.  Rights of the Substitute Claimant Following the Grant of Substitution

Introduction
This topic contains information on rights of the substitute claimant, including

Change Date
April 23, 2024

XI.ii.3.B.3.a.  Timelines for Substitute Claimant to Take Action
Once a substitution request is granted, the substitute claimant must complete any action required by law or regulation within the time period remaining for the original claimant to take such action on the date of their death.
If the original claim was
  • not decided at time of death, as demonstrated in the examples found in M21-1, Part XI, Subpart ii, 3.B.3.g–i, the time period remaining for a substitute claimant to provide evidence depends on whether a Section 5103 notice was sent to the original claimant prior to death and if the time period for a response had expired, or
  • decided at time of death, the time period remaining for a substitute claimant to request a review of the decision depends on the decision review period and the number of days which had elapsed between the day after a decision notice was sent and the original claimant’s date of death.
Follow the steps in the table below to calculate the remaining time to complete any action by law or regulation when the original claim was decided at time of death and the decision review period has not expired.  The time remaining to take such action will start to run on the date of the mailing of the decision notice granting the substitution request.
Step
Action
1
Determine the number of days which had elapsed between the day after a decision notice is sent to the original claimant and date of their death by using the COUNT DAYS tab in the Time and Date online calculator and checking the box that says include the end date in calculation.
2
Calculate the total number of days in the original claimant’s decision review period (365 or 366 if the decision review period included February 29) minus the elapsed days calculated from Step 1 to determine the remaining days for the substitute claimant to file a disagreement.
3
Since the substitute claimant has the remainder of one year from when the decision notification letter was sent to the original claimant to complete the required actions, add the difference to the date VA sent the notice of approval for substitution by using the ADD DAYS tab in the Time and Date online calculator.
4
The calculated new date will reflect the date VA must receive the final actions to be considered timely.  If the new date for final action is a Saturday, Sunday, or holiday extend the time limit to the next succeeding workday.
Important:  Pension management centers must use and upload a copy of the Time and Date online calculator to the claims folder when determining a substitute claimant’s timeline to complete any actions by law or regulation.
References:  For more information on

XI.ii.3.B.3.b.  Submission of Evidence and Other Rights Afforded to the Substitute Claimant
A substitute claimant has the same rights as would have applied to the original claimant had they not died, including the rights regarding
  • hearings
  • representation
  • legacy appeals
  • decision review options for a claim not finally adjudicated, and
  • submission of evidence.
References:  For more information on

XI.ii.3.B.3.c.  Notification When the Period to File a Review Has Not Expired
A substitute claimant has the right to request a decision review of a deceased claimant’s claim that is not yet final.  However, this review must be filed on the appropriate form.
Use the table below to determine the actions to take when an accrued or substitution claim is received, but the claimant did not submit the proper Appeals Modernization Act (AMA) review form.
If eligibility for substitution is …
Then …
met
  • make a decision on the substitution request by
    • sending the claimant, a notification letter, and
    • properly disposing of the end product (EP) by following the actions outlined within M21-1, Part XI, Subpart ii, 3.E.17.k for when the substitute claimant did not submit the required AMA review form, and
  • take no further action unless the proper forms are filed.
Important:
  • When granting the request for substitution follow notification requirements in M21-1, Part XI, Subpart ii, 3.C.5.d.  Include any necessary forms and the remaining time limit the claimant has to file a review.
  • The substitution claimant is not required to resubmit a new application for accrued benefits if they submit the proper AMA review form.
not met
  • send the claimant a notification letter with the necessary forms by following the actions outlined within M21-1, Part XI, Subpart ii, 3.C.3.d or e
  • properly dispose of the EP, and
  • take no further action unless the proper forms are filed, and evidence of eligibility is received.
Note:  The time remaining to take such action will start to run on the date of the mailing of the decision notice granting the substitution request.
References:  For more information on

XI.ii.3.B.3.d.  Rights Not Afforded to the Substitute Claimant
Rights that may have applied to the claimant prior to death but which cannot practically apply to a substitute are not available to the substitute.
Example:  Medical examinations.
Reference:  For more information on the rights not afforded to the substitute claimant, see 38 CFR 3.1010(f)(3).

XI.ii.3.B.3.e.  Expansion of the Claim
The substitute claimant may not
  • add an issue to the claim, or
  • expand the claim.
Note:  The substitute claimant may raise new theories of entitlement in support of the claim.
Exception:  Entitlement to additional compensation for dependents under 38 U.S.C. 1115 is implicitly raised whenever a Veteran has a disability rating of at least 30 percent and a substitute claimant submits evidence of dependents within one year of the rating decision notice assigning a disability rating of at least 30 percent.
References:  For more information on
  • the expansion of the claim, see 38 CFR 3.1010(f)(2)
  • notification requirements that apply each time the rating activity assigns an overall service connection (SC) disability evaluation of at least 30 percent, see M21-1, Part VII, Subpart i, 1.C.1.e, and
  • additional compensation for dependents implicitly raised, see Sharp v. Shinseki, 23 Vet.App. 267 (2009).

XI.ii.3.B.3.f.  Example:  When Additional Compensation for Dependents Has Been Implicitly Raised
Situation:
  • On 01/02/2023, VA received a claim from the Veteran for SC for prostate cancer with no indication of dependents.
  • On 03/01/2023, the Veteran died before their claim was completed.
  • On 06/16/2023, VA received a VA Form 21P-534EZ, Application for DIC, Survivors Pension, and/or Accrued Benefits, from the Veteran’s surviving spouse specifically requesting accrued benefits.  All marital relationship criteria have been met and the surviving spouse and Veteran were married prior to 01/02/2023.
  • On 07/06/2023, rating activity grants SC for prostate cancer at a 50 percent evaluation effective 01/02/2023.
Result:  Since the VA Form 21P-534EZ was received within one year of the Veteran’s death, accept as a dependency claim to add the surviving spouse to the Veteran’s award effective 01/02/2023, for accrued purposes.
Notes:
  • The same result would be true if the Veteran died after their claim was completed.  If the claim had not been finally adjudicated, as defined in M21-1, Part X, Subpart ii, 1.A.1.c, the surviving spouse would still be added to the Veteran’s award effective 01/02/2023.
  • A substitute claimant must still be afforded all the same claims processing legalities and obligations as the original claimant.  The original claimant’s passing would not excuse nor negate VA’s duty to assist in ensuring the substitute claimant is aware of, and appropriately awarded, any potential dependency and ancillary benefits.
  • If complete information to establish the dependent is not of record, development must be completed in accordance with 38 CFR 3.159(b).
Reference:  For more information on rating decisions that render a Veteran eligible for additional compensation for dependents, see M21-1, Part VII, Subpart I, 1.C.2.c.

XI.ii.3.B.3.g.  Example:  Calculating the Time Limit When a Section 5103 Notice Was Not Sent to the Original Claimant
Situation:
  • On 04/01/2019, VA received a claim for SC for a right hip condition.
  • On 06/23/2019, the Veteran died.  VA was unable to send the Section 5103 notice to the Veteran before the Veteran died.
Result:  Since the Section 5103 notice was not sent to the original claimant, allow the substitute claimant 30 days to submit evidence when providing the Section 5103 notice.

XI.ii.3.B.3.h.  Example:  Calculating the Time Limit When a Section 5103 Notice Was Sent to the Original Claimant and Has Not Expired
Situation:
  • On 04/01/2019, VA received a claim for SC for a right hip condition.
  • On 06/15/2019, the Veteran was sent an adequate Section 5103 notice on a pending claim for right hip condition.
  • On 06/23/2019, the Veteran died and prior to the Veteran’s death, no additional evidence was submitted that required development.
Result:  Since only 8 days have passed, at the time of the deceased claimant’s death, since the Section 5103 notice, allow the substitute claimant 22 days to submit evidence when providing a notice to the substitute claimant that the request for substitution has been granted.

XI.ii.3.B.3.i.  Example:  Calculating the Time Limit When a Section 5103 Notice Was Sent to the Original Claimant and Has Expired
Situation:
  • On 04/01/2019, VA received a claim for SC for a right hip condition.
  • On 04/02/2019, the Veteran was sent an adequate Section 5103 notice on a pending claim for right hip condition.
  • On 06/23/2019, the Veteran died and prior to the Veteran’s death, no additional evidence was submitted that required development.
Result:  Since the full 30 days for the Section 5103 notice had passed, no additional time is required, and a decision should be made on the right hip condition.  A decision notice should be sent to the substitute claimant.  The substitute claimant will receive the same rights as the Veteran would have received, but for their death, to submit a decision review request or to appeal the decision of the right hip condition.

XI.ii.3.B.3.j.  Example:  Calculating the Time Limit When the Original Claim Was Decided at Time of Death, Time Has Not Expired, and the Decision Review Period Has 365 Days
Situation:
Result:  Since 103 days have elapsed between the day after notification was sent and the date of death, VA would notify the substitution claimant that they have until 03/19/2020, to request review of the decision on the proper form.  The substitute claimant has 262 (365-103) remaining days to file a decision review election from 07/01/2019, the date they were notified of an approved substitution.
References:  For more information on

XI.ii.3.B.3.k.  Example:  Calculating the Time Limit When the Original Claim Was Decided at Time of Death, Time Has Not Expired, and the Decision Review Period Has 366 Days
Situation:
  • On 03/01/2019, VA sent the Veteran notification of an award decision with decision review rights.
  • On 05/29/2019, the Veteran died.
  • On 07/01/2019, an accrued claim and VA Form 21P-0847, is received.
  • On 07/01/2019, the claimant is notified of an approved substitution.
Result:  Since 89 days have elapsed between the day after notification was sent and the date of death, VA would notify the substitution claimant that they have until 04/03/2020, to request review of the decision on the proper form.  The substitute claimant has 277 (366-89) remaining days to file a decision review election from 07/01/2019, the date they were notified of an approved substitution.