Gardberg & Kemmerly, P.C. Attorneys at Law


Unfortunately, many veterans pass away before a decision can be made on his or her claim for benefits or before an appeal is completed. In such circumstances, survivors of the deceased veteran may, in some circumstances, take the place of the veteran and continue the claim or appeal. 39 U.S.C. ยง 5121A provides, in part, that if a veteran claimant dies on or after October 10, 2008, while a claim or appeal is pending:

a person eligible to receive accrued benefits due to the claimant under [subsection (a) of the accrued benefits statute] may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purpose of processing the claim to completion.

To request substitution, a claim must be pending. A claim is considered pending with the VA if:

(1) the veteran filed a claim with an agency of original jurisdiction, but passed away before a decision was issued;

(2) an agency of original jurisdiction made a decision on the veteran's claim, but the veteran had not yet filed a Notice of Disagreement and the period allowed by law for filing a Notice of Disagreement has not expired.

If, however, the Board of Veterans' Appeals issues a final decision on an appeal prior to the claimant's death, the appeal is not considered pending even if the 120-day period for appealing the Board of Veterans' Appeals' decision to the Court of Appeal for Veterans Claims has not yet expired.

A request to substitute must be in writing and must, at a minimum, indicate the following:

(1) an intent to substitute;

(2) the deceased claimant's claim number, Social Security number, or appeal number;

(3) the names of the deceased claimant and the person requesting to substitute.

A request to substitute must be filed with the agency of original jurisdiction, even if the case is at the Board of Veterans' Appeals, no later than one year after the claimant's death. The agency of original jurisdiction will make a decision on the request for substitution and will provide notification to the person requesting substitution. The denial of a request to substitute may be appealed to the Board of Veterans' Appeals.

If you are the survivor of a deceased veteran who had a claim pending with the VA, contact Gardberg & Kemmerly, P.C. for a free case evaluation today. Gardberg & Kemmerly, P.C. serves veterans and their families throughout the Gulf Coast, including, Alabama, Florida, Mississippi, and Louisiana.

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