Substitution in a VA Claim

VA recently changed its substitution rules that apply to cases where a veteran dies while pursuing a VA disability claim. The death of a loved one is always very difficult.  Substitution in a VA claim allows the spouse, children, or dependent parents of a veteran to continue to pursue the veterans disability claim when the veteran passes away.

Substitution in VA claim versus Dependency and Indemnity Compensation (DIC)

Substitution is different that a Dependency and Indemnity Compensation (DIC) claim which can be brought by eligible survivors.  A DIC Claim only addresses benefits that are due to survivors after the veterans death.

Substitution addresses benefits that were or are potentially due to the veteran prior to death but have not been paid yet.

Substitution versus accrued benefits

Substitution in a VA claim is also different than an accrued benefits claim.  The primary difference is that substitution gives survivors the possibility of introducing additional evidence.  In an accrued benefits claim, a decision will just be made based on the evidence that is already in the veteran’s file as of the time of the veteran’s death.

Substitution is a much more powerful tool.  It allows the survivors to introduce additional evidence to support the veteran’s claim or claims.  If additional evidence is needed to prove the veterans claim to VA, it can be added after substitution.

The new substitution rule

The new substitution rule became effective in October 2014.  Rule 3.1010 provides that certain survivors can elect to substitute for the veteran.  The following list indicates the top three people who have the right to substitute in the order of priority.

  1. The veteran’s spouse
  2. The veteran’s children
  3. The veteran’s dependent parents

Although we have not stated them here, there are additional survivors who can be eligible under Rule 3.1010 if the first three indicated above are not eligible.

When does a request for substitution need to be made?

The request for substitution in a VA claim must be made within a year of the veteran’s death. One way (and probably the safest and easiest way) to make a request for substitution is to use VA Form 21-0847.  There are also other applications that can also be treated as a request for substitution.  These include:

  • A claim for survivor’s pension
  • A claim for Dependency and Indemnity Compensation
  • A claim for accrued benefits

Should I apply for substitution if I am eligible?

Substitution provides a greater ability to prove entitlement to benefits before the veteran’s death.  Because of that, it is almost always a good idea to file for substitution.

With VA’s new rules that treat claims for DIC, accrued benefits, and survivor’s pension as a request for substitution, it is really difficult not to elect substitution if you are a spouse or child of the veteran and are going to pursue any sort of claim.

Travis Studdard is an attorney who focuses on representing veterans in VA disability compensation claims.  He regularly writes about issues that are important to veterans and their families.

You can subscribe to his Veterans Disability channel on YouTube.

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