Caring. Effective. Efficient.

BVA fails to consider Survivor's Claim of Substitution

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.

Does this case sound like your VA Rating Decision or BVA Decision? If so, click here to have  Attig | Steel take a look at your case.

Link to the BVA Decision on CAVC Website.

Link to the Joint Motion to Remand the CAVC Website.

Case Details

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

Recent Cases

This case involves the special, and very powerful, Nehmer effective date rules.  Mr. Greene, the veteran, sought an effective date for his service connected coronary artery disease. He argued his effective date should go back to 2006, the first clai… Read More
This case involves the BVA’s rejection of a theory of service connection by aggravation for a back condition. The BVA refused to service connect the veteran’s back injury, which he argued was aggravated by service-connected knee and hip i… Read More
  This case involves a veteran who served in the Air Force from 1953 to 1957. During service, he injured his back on a flight line, and has repeatedly tried to service connect the injury since leaving service in 1957. Each time, the claim was de… Read More

See More Appellate Results

VA Form 21 Blog

Sep
30
Earlier this year, I tested an idea – what if a group of lawyers grabbed a virtual cup of coffee every Monday morning and chatted about their progress building a profitable law firm that prioritizes the attorney’s well being? Thos… Read More
Sep
6
If you hear the phrase, lawyers with a purpose, what is your immediate reaction? Do you roll your eyes? Yawn? Close this page and find something else to read? I’ll be honest, the first time a business coach told me that my law practice… Read More

Read the VA Form 21 Blog