VA Accrued Benefits and Substitution

CCK Law: Our Vital Role in Veterans Law

Video Transcription:

Courtney Ross: Good afternoon, and welcome to CCK live with Chisholm Chisholm and Kilpatrick. I’m Courtney Ross and joining me today is Kaitlyn Degnan and Bethany Cooke. And today we are going to be talking about accrued benefits and substitution.

So before we jump into how to obtain accrued benefits. The first question is what are accrued benefits? So in a situation where a veteran passes away, eligible surviving dependents may be entitled to accrued benefits. These are benefits or back pay that was due to the veteran at the time of his or her death but had not yet been paid to the veteran and so there are two primary scenarios you want to think about in terms of determining whether accrued benefits could be on the table.

The first is if a claim or appeal was pending before VA, but had not yet been decided at the time of the veteran’s death. The second scenario is if a claim or appeal had been decided by a VA at the time of the veteran’s death, but you are still within the window to appeal that decision. Those are two possible scenarios in which accrued benefits may be on the table for eligible surviving dependents.

So before we jump into the specifics of how to apply for the accrued benefit and who is actually eligible, Kaitlyn, I want to turn to you first to clarify if accrued benefits are the same thing as survivor’s benefits.

Kaitlyn: So accrued benefits are not considered death benefits or survivor’s benefits since these were essentially the benefits that were owed to the veteran before he or she died. So VA accrued benefits are based on the
veteran’s entitlement, not the survivor’s entitlement.

A survivor of a deceased veteran can file a claim for dependency and indemnity compensation if the veteran’s death was caused by a service-connected condition, but that is a separate benefit from the accrued benefits and requires the filing of a claim for DIC. We have done videos on DIC and survivor benefits before you can find those on our website.

Courtney: Thank you. And those have a lot more detail about what the survivor’s benefits include so I would definitely encourage you to check those videos out if you are looking for more information specifically on survivor’s benefits.

So, Bethany, one concept that I think is critical to understanding to get to the point of understanding accrued benefits is this concept of substitution. Can you explain what I mean by substitution and what that is?

Bethany: Sure. So substitution is the first step in obtaining accrued benefits. So filing for substitution means that an eligible dependent or surviving spouse of the veteran applies to essentially step into the shoes of the veteran in the VA claims or appeals that were pending at the time the veteran passed away.

So when a veteran passes away while a claim for VA disability benefits is still pending, an eligible individual may be substituted into the veteran’s keys to continue that claim for benefits and these would be the accrued benefits that you explained before, Courtney. So if substitution is granted, the claim will then proceed as it would have if the veteran will still alive, allowing additional evidence to be added to the file and for VA to issue a decision on the pending claims based on the merits.

Substitution is extremely important as eligible dependents must apply for it within one year of the veteran’s death in order to be eligible for the accrued benefits at all, and even once the dependent is substituted into the veteran’s claim, they are only eligible for the benefits that the veteran would have received when they were alive. So unfortunately substituted claimants will only receive retroactive payments up to the date of the veteran’s death.

Courtney: Thank you, Bethany. So we have talked or we have mentioned a couple of times since the start of this broadcast about eligible surviving dependents. So who exactly fits into that category, so VA breaks down eligibility as follows;

So one if the veteran has a surviving spouse the full amount of VA accrued benefits is paid to the deceased veteran’s surviving spouse. If there is no surviving spouse and the veteran has surviving dependent children, VA accrued benefits are paid in equal shares to the deceased veteran’s surviving children.

Dependent children fit into three possible categories, so if a veteran had a dependent child under the age of eighteen, if the veteran had a child between the ages of eighteen and twenty-three who was attending school full time or if the veteran had a child who VA had determined was met the helpless child’s standard that VA uses. The third category of eligible dependents is a surviving dependent parent.

If the veteran did not have their surviving spouse and no eligible surviving children but did have a dependent surviving parent, VA may also pay the accrued benefits to that eligible dependent surviving parent and if there are two parents that meet that criteria then VA will pay that accrued benefits in equal shares to both of those parents. So those are the three primary categories of eligible surviving dependents who may be entitled to accrued benefits if they are granted. So Kaitlyn, when are VA accrued benefits usually granted and how does that work?

Kaitlyn: So accrued benefits end up being the retroactive pay or the back pay that the veteran would have received if they were still alive, but it is important to remember that the surviving dependent will only receive compensation up to the date that the veteran passed away, not up to the date that the benefits were granted by VA.

For example, if a veteran filed a claim in January passed away in June and then their claim was granted in September, the surviving dependent would only receive back pay for the period from January the date of the claim until June the date of the veteran’s death. We have also produced a lot of blog posts and videos on back pay so you can also check out our website if you’d like more information about how that works as well.

Courtney: Thank you. So I want to back up a little bit now and talk about the actual process for applying for accrued benefits. So, Bethany, you mentioned before the importance of substitution in terms of being the first step to applying for accrued benefits, can you expand on the process a little bit and walk us through how to apply for these benefits if you were an eligible surviving dependent?

Bethany: Yes. So I think the first thing to keep in mind is that all claims for accrued benefits must stem from the deceased veteran’s existing claims or appeals for benefits. So this means that a surviving spouse child or dependent parent may not re-open or re-argue a claim that was previously decided and became final.

So essentially, you can apply for substitution and accrued benefits, if one, a veteran passes away there were claims or appeals still pending or if there is even a decision that the veteran was in the appeal period for when he or she passed away. If either of those scenarios applied, that’s when the surviving dependent can request to be substituted into these pending appeals as the claimant for accrued purposes. So how that happens?

The first step in obtaining the accrued benefits is to of course file the proper forms which include both the VA Form 21P-534EZ and the
VA Form 21P-0847 both of which are available on the VA’s websites. So these forms again have to be filed within a year of the veteran’s death in order for the dependent to actually be eligible for substitution. So by filing these forms, you are requesting substitution and accrued benefits at the same time.

You can also use these forms to file for DIC or survivor’s pension if you choose to, but to briefly explain the process, your filing for substitution and accrued benefits at the same time because these forms allow you to check both boxes, but what has to happen first is substitution. So once you file the proper forms requesting both substitution and accrued benefits what’s going to happen is the regional office is going to issue a decision on the request for substitution first.

If you are an eligible dependent then the regional office should issue a formal decision granting your request for substitution. And once that happens you’re recognized as the claimant in the appeals are claims that were pending at the time of the veteran’s death.

At that point the what the VA will do is for lack of a better word reactivate what was pending when the veteran passed away and we will proceed to issue decisions on them. So the claimant is then able to collect the retractive award of benefits should be an issue or favorable decision or if VA continues to deny the claims or appeals, the claimant is able to file the appeals on them as if they were the veteran.

And remember, given that the claimant is now for all intents and purposes, the veteran in these claims can submit evidence to support that the veteran was entitled to the pending benefits such as medical or lay evidence supporting the claim.

And I’ll just close again with the reminder that it’s very important to file the claim for substitution and accrued benefits within a year of the veteran’s death, if you don’t do that, then that avenue is essentially closed to you. Those pending in appeals or claims are done and you can no longer be substituted into them if you have missed that your window.

Courtney: Thank you, Bethany. I think that that outline of the process hits a lot of critical points to include the importance of that first step of establishing substitution before you can really get into establishing or reactivating the pending appeals and establishing entitlement to a group benefit.

Thank you for outlining and kind of walking us through the steps of that process. Kaitlyn, do you have any additional closing thoughts before we wrap up today’s broadcast?

Kaitlyn: I think I would just echo Bethany’s point. We understand that, if you are filing for accrued benefits, you probably have a difficult time, but it is just still so important to keep those deadlines in mind and it’s also still important to remember that you can reach out to your VSO, you can reach out to your local RO, you can reach out to representation, you know, someone can help you do this, so don’t be afraid to ask for help if you need it.

Courtney: Thank you both for joining me today to talk about accrued benefits and substitution. Don’t forget to follow us on social media and check out our extensive video library on our blog for more information on a variety of topics related to VA law. Thank you.