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 BVA’s dismissal of a veteran’s claim for an earlier effective date for his service-connected post-traumatic stress disorder (PTSD) based on clear and unmistakeable error. Our client appealed the Board’s decision to th… Read More
The cause number of this appeal, and the veteran’s name, have been withheld to protect the veteran’s privacy. In this case, the BVA denied an increased rating of 70% to a veteran for his service-connected PTSD. The BVA also found the vete… Read More
This case involves a veteran’s appeal to the BVA seeking service connection for arthritis.  The veteran served in the US Air Force from 2005 to 2006. He injured his knee and other parts of his body when required to move heavy appliances into a… Read More

See More Appellate Results

VA Form 21 Blog

Aug
12
“I can’t take a day off or a vacation. Someone has to get the work done.”  If you are a lawyer and that is the reason you are not taking a vacation, or at least a day off, then you are bailing water from a sinking ship. Working to keep… Read More
Aug
9
“To be a good lawyer, one has to be a healthy lawyer.”  So begins an August 2017 report from the National Task Force on Lawyer Well-Being. The problem with this statement, however, is that it is a false comparison. Some of… Read More

Read the VA Form 21 Blog