BVA fails to consider Survivor's Claim of Substitution
This case involves a survivor's claim of substitution into a veteran's pending claims and appeals when the veteran passes away.
At the time the BVA Veterans Law Judge issued the decision, the law required that a VA Form 21-534 for Survivor benefits will be accepted as both a claim for accrued benefits and a VA claim of substitution form. 38 C.F.R. 3.1010. Additionally, before the BVA issued its decision in this case, the Court of Appeals for Veterans Claims issued a precedential decision finding that a VA claim for accrued benefits was also a survivor's VA claim of substitution. Reliford v. McDonald, 27 Vet.App. 297 (2015).
The BVA ignored the law and failed to consider the survivors VA claim of substitution into pending claims and appeals.
Because the law was so clear, the VA Office of General Counsel agreed to jointly move to vacate the BVA decision for its failure to follow the law and failure to consider whether the surviving spouse's application for VA survivor benefits was also a VA claim of substitution into the veteran's pending claims and appeals.
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Link to the BVA Decision on CAVC Website.
Link to the Joint Motion to Remand the CAVC Website.
OGC Attorney: Yvette R. White
Veteran Representation at CAVC: Chris Attig (link to bio)
Board of Veterans Appeals Veterans Law Judge: Barbara B. Copeland
Regional Office: Philadelphia, Pennsylvania, VA Regional Office
Vets’ Rep at BVA: Chris Attig (link to BVA Appeals information)
Date of BVA Decision: March 25, 2015
Date of CAVC Judgment on Remand: November 25, 2015