SUBSTITUTION: A New Day in Accrued Benefits Claims. Celeste Krikorian. MOPH NSO Annual Training Spring 2014 Orlando, FL 1

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1 : A New Day in Accrued Benefits Claims Celeste Krikorian MOPH NSO Annual Training Spring 2014 Orlando, FL 1

2 OBJECTIVES: What is Substitution? What are the Benefits of Substitution? Who is Eligible? How do you file? Advice to NSOs MOPH NSO Annual Training Spring 2014 Orlando, FL 2

3 What is Substitution? Substitution is when survivor of veteran eligible to receive accrued benefits (Ex. spouse, child, dependent parents, etc.) Accrued benefits= periodic monetary benefits including compensation, pension, and DIC benefits MOPH NSO Annual Training Spring 2014 Orlando, FL 3

4 Accrued Benefit Claim vs. Substitution Prior to Substitution, decision on accrued benefits claim was limited to evidence in file at date of death Substitution: No restriction substituted party will be in same position, procedurally, as deceased claimant MOPH NSO Annual Training Spring 2014 Orlando, FL 4

5 AN APPLICATION FOR DEATH BENEFITS WILL BE CONSTRUED AS APPLICATION FOR SUBSTITUTION MOPH NSO Annual Training Spring 2014 Orlando, FL 5

6 What are benefits of Substitution? A Substituted party steps into the shoes of the deceased claimant Major change to how survivors of claimants who die while claim is pending may pursue benefits MOPH NSO Annual Training Spring 2014 Orlando, FL 6

7 What Does This Mean? Survivor substitutes as claimant for purposes of processing claim to completion a) New evidence can be submitted b) Substitution allows survivor to continue without having to start claims process over again c) Docket dates are preserved MOPH NSO Annual Training Spring 2014 Orlando, FL 7

8 Who is eligible? If VA claimant died Prior to 10/28/2008, the claim/appeal died with the claimant If VA claimant dies on or after October 10, 2008, while his/her claim for VA benefit is pending, a living person eligible to receive accrued benefits may file request to substitute for deceased claimant MOPH NSO Annual Training Spring 2014 Orlando, FL 8

9 Who is eligible? If there is no person or persons eligible to receive accrued benefits, then accrued benefits may be paid to a person who bore the expense of the claimant s last sickness and burial, to the extent necessary to reimburse that expense. 38 CFR 5121(a)(6) MOPH NSO Annual Training Spring 2014 Orlando, FL 9

10 Who is eligible? If accrued benefits claimant (substituted party) dies before deceased veteran s case is complete, another eligible accrued benefits claimant can substitute as long as file within 1yr of deceased veteran s death. MOPH NSO Annual Training Spring 2014 Orlando, FL 10

11 Who is eligible? Cases on appeal In order for an eligible accrued benefits claimant to substitute on appeal, vet must have filed NOD (notice of disagreement) before his death MOPH NSO Annual Training Spring 2014 Orlando, FL 11

12 Who is eligible? Cases on CAVC appeal If a deceased vet s claim is on appeal to CAVC, eligible party can request substitution VA will decide if party is eligible Breedlove v. Shinseki, 24 Vet. App. 7 (2010). MOPH NSO Annual Training Spring 2014 Orlando, FL 12

13 Legal Authority: Public Law , Sec. 212 (2008) 38 U.S.C. 5121A VA Fast Letter (03/03/10) VA Fast Letter (08/10/10) VA Fast Letter (Revised) (04/03/2013) MOPH NSO Annual Training Spring 2014 Orlando, FL 13

14 There are no published regulations on Substitution yet Look to 38 U.S.C. 5121A and VA Fast Letters for guidance MOPH NSO Annual Training Spring 2014 Orlando, FL 14

15 What are the requirements for filing a proper motion for Substitution? 1) Eligible party must file motion to AOJ within one year of veteran s death (AOJ = Agency of Original Jurisdiction) MOPH NSO Annual Training Spring 2014 Orlando, FL 15

16 2) File motion to substitute on either VA forms: a) Form , App. for DIC, Death Pension & Accrued Benefits b) Form , Request for Substitution c) Form App. For Accrued Benefits (Not recommended) MOPH NSO Annual Training Spring 2014 Orlando, FL 16

17 3) Execute and enclose new power of attorney VA Form, 21-22, in name of the new claimant a) CAUTION: If no new POA signed, representation by MOPH will not transfer to survivor VA will record claimant as having NO representative MOPH NSO Annual Training Spring 2014 Orlando, FL 17

18 4) Attach a copy of the death certificate of the deceased veteran Effective Date of Motion: Date written request for substitution is received by VA is date which motion will be considered officially filed MOPH NSO Annual Training Spring 2014 Orlando, FL 18

19 Special Considerations: Cases at BVA 1) When motion is filed: >BVA will transfer file to AOJ 2) If motion granted: >File will be re-transferred to BVA who will decide in original docket order MOPH NSO Annual Training Spring 2014 Orlando, FL 19

20 Where AOJ denies motion: Decision to deny motion can be appealed to BVA BVA will decide Substitution eligibility and If granted, BVA will adjudicate case in docket order MOPH NSO Annual Training Spring 2014 Orlando, FL 20

21 What New Evidence Is Allowed? No bar on submission of new evidence including: a) VA medical nexus opinion b) Private medical nexus opinion c) Medical records d) Lay evidence MOPH NSO Annual Training Spring 2014 Orlando, FL 21

22 Advice to NSOs Most recent guidance provides claim for accrued benefits is construed as claim for substitution. Never waive opportunity to substitute/submit additional evidence Benefits of Substitution = Accrued benefits MOPH NSO Annual Training Spring 2014 Orlando, FL 22

23 Advice to NSOs For appeal, timely NOD must have been filed before death of claimant New/Inferred claims cannot be added New theories of entitlement can be added Presumably, cases on remand continue to be reviewed in order of BVA remand date MOPH NSO Annual Training Spring 2014 Orlando, FL 23

24 QUESTIONS? MOPH NSO Annual Training Spring 2014 Orlando, FL 24