ࡱ > q` W bjbjqPqP . : : N l 2 l l l 8 m | m 2 x f n r s ( 8s 8s 8s lt r| T ~ , > њ e $ ޥ h F g lt lt g g 8s 8s 4 2 _ _ _ g 8s 8s i ( _ g _ _ 8s n @Sy l - < H 0 x / , 4 > 0 , _ \ $ X x g g g g 2 2 2 . > . 2 2 2 > 2 2 2 Chapter 1. Eligibility 1. General Information on Eligibility PRIVATE INFOTYPE="OTHER" IntroductionThis topic contains general information on eligibility to accrued benefits, including the definition of accrued benefits the CFR provisions that apply to accrued benefits basic eligibility for accrued benefits determining the payment period based on the date of death, and handling issues on appeal on the date of death. Change DateMay 7, 2009 a. Definition: Accrued BenefitsAccrued benefits are, by definition, benefits due to the beneficiary but not paid prior to death. Reference: For more information on entitlement to accrued benefits, see HYPERLINK "http://www4.law.cornell.edu/uscode/38/5121.html"38 U.S.C. 5121, and HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_1000.DOC" 38 CFR 3.1000.Continued on next page STYLEREF "Map Title" 1. General Information on Eligibility, Continued b. CFR Provisions That Apply to Accrued BenefitsWhen determining if a claim, formal or informal, was pending on the date of death and the effective date of benefits or increased benefits for payment as accrued, apply HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_151.DOC" 38 CFR 3.151 HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_155.DOC" 38 CFR 3.155 HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_157.DOC" 38 CFR 3.157 HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_400.DOC" 38 CFR 3.400 HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_401.DOC" 38 CFR 3.401 HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_1000.DOC" 38 CFR 3.1000(d)(4) HYPERLINK "http://www.warms.vba.va.gov/REGS/38CFR/BOOKG/PART21/s21_30.doc" 38 CFR 21.30 HYPERLINK "http://www.warms.vba.va.gov/REGS/38CFR/BOOKG/PART21/s21_30.doc" 38 CFR 21.31 HYPERLINK "http://www.warms.vba.va.gov/REGS/38CFR/BOOKG/PART21/s21_32.doc" 38 CFR 21.32 HYPERLINK "http://www.warms.vba.va.gov/REGS/38CFR/BOOKG/PART21/s21_1030.doc" 38 CFR 21.1030 HYPERLINK "http://www.warms.vba.va.gov/REGS/38CFR/BOOKG/PART21/s21_1031.doc" 38 CFR 21.1031 HYPERLINK "http://www.warms.vba.va.gov/REGS/38CFR/BOOKG/PART21/s21_1032.doc" 38 CFR 21.1032 HYPERLINK "http://www.warms.vba.va.gov/REGS/38CFR/BOOKG/PART21/s21_3030.doc" 38 CFR 21.3030, and HYPERLINK "http://www.warms.vba.va.gov/REGS/38CFR/BOOKG/PART21/s21_4131.doc" 38 CFR 21.4131. References: For more information on using evidence in the file to determine eligibility, see HYPERLINK "pt08_ch01.xml" \l "VIII.1.4"M21-1MR, Part VIII, 1.4, and payment of accrued benefits, see HYPERLINK "http://www4.law.cornell.edu/uscode/38/5121.html"38 U.S.C. 5121.Continued on next page STYLEREF "Map Title" 1. General Information on Eligibility, Continued c. Basic Eligibility for Accrued BenefitsIf death occurred on or after December 1, 1962, monetary benefits, other than insurance and servicemens indemnity, may be authorized. Payment may be made for benefits to which a payee was entitled at his/her death under existing ratings or decisions, or which are based on evidence in the file at the date of death and due and unpaid. Important: The evidence in the file at the date of death must be evidence related to a claim that has not been finally adjudicated. To be considered in file, the evidence must be in VAs possession. References: For more information on the definition of evidence in the file at the date of death, see HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_1000.DOC" 38 CFR 3.1000(d)(4) and (d)(5), and HYPERLINK "pt08_ch01.xml" \l "VIII.1.4.b"M21-1MR, Part VIII, 1.4.b initial actions on the death of a beneficiary, see HYPERLINK "pt03_sp02_ch08_secA.xml" \l "III.ii.8.A" M21-1MR, Part III, Subpart ii, 8.A furnishing applications for accrued benefits, see HYPERLINK "pt03_sp02_ch02_secC.xml" \l "III.ii.2.C.11"M21-1MR, Part III, Subpart ii, 2.C.11 basic entitlement to benefits under HYPERLINK "http://www4.law.cornell.edu/uscode/38/5121.html"38 U.S.C. 5121, see HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_1000.DOC" 38 CFR 3.1000, and the effective date of discontinuance of benefits upon the death of a beneficiary, see HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_500.DOC" 38 CFR 3.500(g).Continued on next page STYLEREF "Map Title" 1. General Information on Eligibility, Continued d. Determining the Payment Period Based on the Date of DeathUse the table below to determine the appropriate period for payment of accrued benefits based on the date of the beneficiarys death. If death occurred Then the retroactive period for payment of accrued benefits is on or after January 1, 1958, but before October 9, 1996a maximum of one year, regardless of when benefits were accrued.on or after October 9, 1996, but before December 16, 2003a maximum of two years, regardless of when benefits were accrued.on or after December 16, 2003not limited. Exception: When accrued benefits are payable to the survivors or estate of a Nehmer class member under HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_816.DOC"38 CFR 3.816(f), there is no limitation in the retroactive period, regardless of the date of death. References: For more information on payment of accrued benefits when death occurs on or after January 1, 1958, but before October 9, 1996, see Public Law (PL) 85-857, and on or after October 9, 1996, but before December 16, 2003, see HYPERLINK "http://www.law.cornell.edu/usc-cgi/get_external.cgi?type=pubL&target=104-275" PL 104-275, and on or after December 16, 2003, see HYPERLINK "http://www.law.cornell.edu/usc-cgi/get_external.cgi?type=pubL&target=108-183" PL 108-183 limitation of payment, see HYPERLINK "http://vbaw.vba.va.gov/bl/21/advisory/CAVCDAD.htm"Terry v. Principi (No. 03-7107), and accrued benefits under Nehmer, see HYPERLINK "pt04_sp02_ch02_secC.xml" \l "IV.ii.2.C.12" M21-1MR, Part IV, Subpart ii, 2.C.12.Continued on next page STYLEREF "Map Title" 1. General Information on Eligibility, Continued e. Handling Issues on Appeal on the Date of DeathIssues on appeal to the Board of Veterans Appeals (BVA) or to the Court of Appeals for Veterans Claims (CAVC) on the date of any claimants death are in a pending status and accrued benefit applications must be sent to potential claimants. Note: For appeals pending before the CAVC, send benefit applications to all individuals who notified the court of an appellants death within one year of the date of death. 2. Pending Claims PRIVATE INFOTYPE="OTHER" IntroductionThis topic contains general information on pending claims, including the definition of a claim pending at the date of death appeals pending on the date of death, and accepting information from CAVC as an informal claim. Change DateMay 7, 2009 a. Definition: Claim Pending at the Date of DeathA claim pending at the date of death means a claim that had not been finally adjudicated on or before the date of death, including a deceased beneficiarys claim to reopen a finally disallowed claim based upon new and material evidence, or to raise a clear and unmistakable error in a prior rating or decision, and any substantive appeals or administrative appeals pending at the time of death. Notes: Any new and material evidence must have been in VAs possession at or before the date of the beneficiarys death. For accrued purposes, a claim is still considered pending at the date of death if the one-year period after the date of notice of an award or disallowance has not expired for filing a Notice of Disagreement. References: For more information on the definition of claims pending at the date of death, see HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_1000.DOC" 38 CFR 3.1000(d)(5), and HYPERLINK "http://vbaw.vba.va.gov/bl/21/advisory/CAVCDAD.htm"Taylor v. Nicholson (No. 05-0625), and evidence in VAs possession at the date of death, see HYPERLINK "pt08_ch01.xml" \l "VIII.1.4" M21-1MR, Part VIII, 1.4.Continued on next page STYLEREF "Map Title" 2. Pending Claims, Continued b. Appeals Pending on the Date of DeathWhen reconsideration by either the office of original jurisdiction or BVA results in a favorable decision granting or retroactively increasing benefits and a claim for accrued benefits is timely filed, the additional sums are paid as accrued. However, if BVAs decision, whether favorable or unfavorable, was issued after death of the claimant, it is a nullity. Accrued decisions must be based solely on the evidence in the file, including the evidence in the constructive custody of the Department of Veterans Affairs (VA) on the date of death. References: For information on appeals pending at the date of death or appeals from disability decisions filed after death, see HYPERLINK "pt01_ch05_secJ.xml" \l "I.5.J.50"M21-1MR, Part I, 5.J.50 continuing appellate action after the death of the appellant, see HYPERLINK "http://152.124.238.193/bl/21/Advisory/CAVCDAD.htm" \l "bml"De Landicho v. Brown, 7 Vet. App. 42 (1994), and entitlement to accrued benefits, see HYPERLINK "http://www4.law.cornell.edu/uscode/38/5121.html"38 U.S.C. 5121. c. Accepting Information From CAVC as an Informal ClaimAll evidence necessary to award benefits must be on file on the date of death. Any communication concerning the death of the applicant that was submitted to the CAVC and subsequently furnished to VA by the CAVC may be acceptable as an informal claim for accrued benefits. Note: Entitlement must be based on evidence in the folder or deemed in the claims folder at the date of death. Reference: For more information on evidence in the folder at the date of death, see HYPERLINK "pt08_ch01.xml" \l "VIII.1.4" M21-1MR, Part VIII, 1.4. 3. Elections and Automatic Increases Pending on the Date of Death PRIVATE INFOTYPE="OTHER" IntroductionThis topic contains general information on elections and automatic increases pending on the date of death, including elections not acted upon at time of death the election of disability compensation in lieu of retired pay, and automatic increases not effected prior to death. Change DateMay 7, 2009 a. Elections Not Acted Upon at Time of DeathTreat an election by the deceased beneficiary not acted on at the time of death as though the decedent was still living. Note: Pay any increase as accrued under HYPERLINK "http://www4.law.cornell.edu/uscode/38/5121.html"38 U.S.C. 5121. Reference: For more information on elections, see HYPERLINK "http://vbaw.vba.va.gov/bl/21/M21-1MR/m21-1mr_main.htm" \l "pt3_spv_ch2" M21-1MR, Part III, Subpart v, 2. b. Election of Disability Compensation in Lieu of Retired PayIf a veteran was in receipt of retired pay from a service department on the date of his/her death and had either filed a claim for or formally elected to receive a greater rate of VA disability compensation, then accrued disability compensation may be payable. The guidelines listed below should be followed in such cases. Before preparing an award of accrued, request that the service department furnish the monthly rates paid and the periods for which they were paid, including payments to survivors of amounts of retired pay remaining unpaid at the time of the veterans death. Determine the amount payable by deducting the amount of retired pay paid from the amount of disability compensation payable over the same period of time.Continued on next page STYLEREF "Map Title" 3. Elections and Automatic Increases Pending on the Date of Death, Continued c. Automatic Increases Not Effected Prior to DeathFailure to make an automatic adjustment to authorize an increased rate payable on a veterans award may be the basis for payment of accrued benefits. When making the award of accrued benefits payable, authorize the increase as if the action had been timely taken, subject to the two-year limitation on the period concerned if death occurred prior to December 16, 2003. The amount payable as accrued lump sum from funds withheld from a minor or incompetent beneficiary is not affected by an automatic increase, since the automatic increase is payable as accrued only under HYPERLINK "http://www4.law.cornell.edu/uscode/38/5121.html"38 U.S.C. 5121. References: For more information on persons entitled on the basis of relationship, see HYPERLINK "pt08_ch01.xml" \l "VIII.1.5" M21-1MR, Part VIII, 1.5, and payments to person having custody of a beneficiary, see HYPERLINK "http://www4.law.cornell.edu/uscode/38/5502.html"38 U.S.C. 5502(d). 4. Evidence in File PRIVATE INFOTYPE="OTHER" IntroductionThis topic contains general information on the evidence in the file, including general policy information, and definitions of evidence in the file at the date of death in VAs possession, and needed to complete the application for accrued benefits. Change DateMay 7, 2009 a. General PolicyDo not request rating action for accrued purposes unless evidence was in the file at the date of death to establish relationship and other factors affecting entitlement. The rating activity is responsible for determining if the medical evidence necessary for a rating determination was in the file at the date of death. Note: Authorization determines if all other evidence necessary to support an award was on file at the date of death. Reference: For more information on evidence in the file at the date of death, see HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_1000.DOC" 38 CFR 3.1000(d)(4). b. Definition: Evidence in the File at Date of DeathEvidence in the file at date of death means evidence in VAs possession on or before the date of the beneficiarys death, even if the evidence was not physically located in the VA claims folder on or before the date of death STYLEREF "Map Title" 4. Evidence in File, Continued c. Definition: Evidence in VAs PossessionEvidence in VAs possession means evidence physically located at any VA facility, including, but not limited to VA regional offices VA insurance centers VA medical centers VA outpatient clinics Vet Centers, and the Records Management Center. Note: Evidence in VAs possession does not include Federal court records. d. Definition: Evidence Needed to Complete the Application for Accrued BenefitsEvidence needed to complete the application for accrued benefits means information necessary to establish that the claimant is within the category of eligible persons, and circumstances exist which make the claimant the specific person entitled to the accrued benefit. 5. Entitlement on the Basis of Relationship PRIVATE INFOTYPE="OTHER" IntroductionThis topic contains information on entitlement on the basis of relationship, including entitlement to accrued benefits entitlement upon the death of a veteran surviving spouse, or child the rights of persons having lower precedence payment to the estate of the preferred claimant, and evidence requirements. Change DateMay 7, 2009 a. Entitlement to Accrued BenefitsEntitlement to accrued benefits vests according to the line of succession established by law. The fact that a preferred beneficiary fails to file or prosecute a claim does not permit payment of his/her share of accrued benefits to a person or persons having an equal or lower preference. A waiver of right also does not permit such payment. References: For more information on the line of succession, see HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_1000.DOC" 38 CFR 3.1000(a), and entitlement to accrued benefits, see HYPERLINK "http://vbaw.vba.va.gov/bl/21/M21-1MR/index.asp?id=pt08_ch04.xml" \l "VIII.4.18"M21-1MR, Part VIII, 4.18.Continued on next page STYLEREF "Map Title" 5. Entitlement on the Basis of Relationship, Continued b. Upon the Death of a VeteranUpon the death of a veteran, accrued benefits are payable to the living person first listed below. When the person entitled is the The accrued is payable in surviving spousefull to the surviving spouse. Reference: For more information on the definition of spouse, see HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_1000.DOC" 38 CFR 3.1000(d)(1).veterans childrenequal shares. Reference: For more information on the definition of child, see HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_1000.DOC" 38 CFR 3.1000(d)(2).parents (both)equal shares, if dependent at the date of the veterans death. Reference: For more information on the definition of dependent parent, see HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_1000.DOC" 38 CFR 1000(d)(3).sole surviving parentfull to the sole surviving parent, if dependent at the date of the veterans death.Continued on next page STYLEREF "Map Title" 5. Entitlement on the Basis of Relationship, Continued c. Upon the Death of a Surviving Spouse or ChildThe table below lists the person(s) entitled to accrued benefits upon the death of a surviving spouse or child. If the death is that of a Then the accrued is payable to the surviving spouseveterans children. Note: Accrued Dependents Educational Assistance (DEA) of a wife or husband is payable only as reimbursement under HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_1000.DOC" 38 CFR 3.1000(f).child surviving child or children on the basis of relationship with the exceptions as listed below. If the deceased child was entitled to an apportioned share of the surviving spouses award, the accrued benefit is payable only as reimbursement under HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_1000.DOC" 38 CFR 3.1000(b)(3). If the deceased child was in receipt of death pension, compensation, or DIC, a remaining child who has elected DEA benefits is entitled only to the unpaid benefits which became due and payable to the deceased child for periods prior to the commencement of DEA benefits to the surviving child. Reference: For more information on the definition of child, see HYPERLINK "http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_1000.DOC" 38 CFR 3.1000(d)(2).Continued on next page STYLEREF "Map Title" 5. Entitlement on the Basis of Relationship, Continued d. Rights of Persons Having Lower PreferenceWhen a person having preferred entitlement dies, forfeits entitlement or otherwise becomes disqualified before receiving and negotiating the check for his/her share of the accrued benefit, pay the next person entitled based on relationship or reimbursement, if a claim is timely filed. Simultaneous claims from persons with different preference status are not considered as contested claims. Reference: For more information on contested claims, see HYPERLINK "http://vbaw.vba.va.gov/bl/21/M21-1MR/m21-1mr_main.htm" \l "pt3_spvi_ch6" M21-1MR, Part III, Subpart vi, 6. e. Payment to Estate of Preferred ClaimantIf a person having preferred title has filed a claim, established entitlement, and died before payment and no other person within a permitted class or relationship survived, the accrued amount becomes payable as reimbursement to that individuals estate if he/she was the payer of the expenses of last illness and burial of the deceased beneficiary. Reference: For more information on claims for reimbursement, see HYPERLINK "http://vbaw.vba.va.gov/bl/21/M21-1MR/index.asp?id=pt08_ch04.xml" \l "VIII.4.11"M21-1MR, Part VIII, 4.11. f. Evidence RequirementsEvidence is required to eliminate persons who would have the same or a higher status of preference only if the record indicates that a person survived the deceased beneficiary. Otherwise, statements of record received by VA prior to the death of the veteran or primary beneficiary are adequate. M21-1MR, Part VIII, Chapter 1 M21-1MR, Part VIII, Chapter 1 1- PAGE 2 1- PAGE 1 ? @ Z [ d h N W 8 9 : G H c d z { ! w j h h Uh h 5CJ h mH nH uj h h Uh h 0J) j h h Uj h h Uh h 56 h h h >P h hux h h j h h U h h . ? \ i < { $If H kd $$If l 40 T$ < 4 l a f4 $If &F $If &F $If &F ^ &F V W M N J $If &F $If &F $If H kde $$If l 40 T$ < 4 l a f4 $If J K b D X v 4 $If &F $If &F $If H kd $$If l 40 T$ < 4 l a f4 4 5 6 B C D E H I J V W X Y f g h t u v w jn h h Uj h h Uj h h Uj h h Uj h h Uj h h Uh h 0J) j h h Uh h j h h U 3 " # $ 2 3 4 5 E F G U V \ ] E F G ^ ֺ֬֞ֆx j h h Uh h 56 j h h Uj% h h Uj2 h h Uj? h h UjL h h Uh h h h 0J) j h h Uj] h h U /4 \ e 9 : e &F $If H kd $$If l 40 T$ < 4 l a f4 &F $If $If ^ _ , - / 9 9 : ; Y Z ` a s j\ h h Uj1 h h