Gardberg & Kemmerly, P.C. Attorneys at Law


One of the most frequent complaints our lawyers hear from veterans concerns the endless delays VA takes, at the Regional Office (RO), at the Board of Veterans Appeals (BVA), and at the Court of Appeals for Veterans Claims (CAVC), in reaching a decision on a claim or paying out an award. Unfortunately, the reality is it can take years for a claim to be decided and, if awarded, paid out. One of my clients expressed best the frustration of all veterans, "They're just waiting for me to die." This common sentiment is quickly followed by the question of what will happen to a claim or award if a veteran does pass away before a claim is decided or an award paid. Understandably, concern for surviving family members often fuels this question.

Should a veteran pass away before VA decides a claim or pays out an award, the case is not necessarily over. An eligible surviving family member can continue on behalf of the deceased veteran - in his or her place. Of course there are specific VA regulations and rules regarding what constitutes an eligible survivor, spouse and children, and whether the survivor can continue a claim on behalf of, or collect monetary benefits owed to, a deceased veteran. There are several things that must be done to protect the right of surviving family members. Contacting a Veteran's Disability attorney for help with this process is highly recommended.

If a claim is pending a decision at the RO or BVA, the eligible surviving family member should file a motion for substitution with the appropriate office. There is no particular form required for the motion. The CAVC has its own distinct rules regarding substitution of an eligible surviving family member for a deceased veteran depending on the stage of the appeal before the Court. If the deceased veteran has a case pending at the CAVC, the eligible surviving family member should immediately contact the veteran's disability lawyer, or if the veteran has filed his appeal to the CAVC on his own - known as a pro se appeal - an attorney admitted to practice before the CAVC, to protect all the rights they are entitled to.

Within one year of the veterans death, the eligible surviving family member must file a VA Form 21-534 Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable) with the VA. This form allows the eligible surviving family member to continue a claim or collect money owed by the VA to the deceased veteran.

I recommend simultaneously filing both a motion for substitution, if applicable, and the VA Form 21-534 as soon as possible after the veteran's death. Filing both continues all claims before the VA and protects the rights of the surviving family member before the VA.

Should you have any questions regarding continuing a case after a veteran passes away, please do not hesitate to contact the Veteran's Disability lawyers at our firm. We are happy to speak with surviving family members of deceased veterans to make sure they are informed of their rights and take the appropriate action to continue a valid claim.

Please contact me if there are any topics you would like me to discuss on this blog. Thank you.

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