What this means
m21-5:7.J.3 explains handling appeals of decedents pending with the board. In plain terms, the official guidance says appeals pending before the Board at the time of the appellant’s death do not survive the appellant’s death; unless a person who is eligible for accrued benefits under 38 U.S.C. 5121(a) requests to proceed with the decedent’s appeal. It also addresses if a person eligible to receive accrued benefits makes a claim to substitute the decedent’s claim or appeal, the ROJ will decide the basic eligibility for substitution. Any adverse determination on basic eligibility is appealable to the Board.
How this may help with a claim
Use m21-5:7.J.3 to audit how VA handled handling appeals of decedents pending with the board. Start with the decision date, the issue being reviewed, and the evidence VA was allowed to consider, then compare the record with this rule: Appeals pending before the Board at the time of the appellant’s death do not survive the appellant’s death; If a person eligible to receive accrued benefits makes a claim to substitute the decedent’s claim or appeal, the ROJ will decide the basic eligibility for substitution. Cite the exact document and page when raising a factual or procedural error, and use the review rights in the actual notice for any deadline.
What to review in your file
- Check the file against this official condition: 3. Appeals After Death
- Confirm that the record or notice addresses this source point: Appeals pending before the Board at the time of the appellant’s death do not survive the appellant’s death; unless a person who is eligible for accrued benefits under 38 U.S.C.
- Document how this stated step or exception applies: If the appellant dies before the Board renders a decision on a pending appeal, the Board will dismiss the appeal and return it to the ROJ.
Important limits
m21-5:7.J.3 explains VA guidance for handling appeals of decedents pending with the board; it does not guarantee an award or replace the statutes, regulations, binding decisions, and review instructions that control an individual claim. Conditions and exceptions still matter, including this source point: Appeals pending before the Board at the time of the appellant’s death do not survive the appellant’s death; A claim for accrued benefits or request to substitute is necessary to act on a claim or appeal pending before VA at the time of the Veteran's death.
Search terms when useful
Phrases that may help when searching your claim file or this library.
- Handling Appeals of Decedents Pending With the Board
- m21-5:7.J.3
- Handling Appeals Decedents
- Pending Board
- Appeals After Death
- handling appeals decedents pending
- providing accrued benefits application
- death occurring during year
Original VA guidance
The official VA text of this section
3. Appeals After Death
Introduction
This topic contains information on appeals after death, including
- handling appeals of decedents pending with the Board
- providing accrued benefits application form, and
- death occurring during the one year appeal period.
Change Date
July 23, 2024
7.J.3.a. Handling Appeals of Decedents Pending With the Board
Appeals pending before the Board at the time of the appellant’s death do not survive the appellant’s death; unless a person who is eligible for accrued benefits under 38 U.S.C. 5121(a) requests to proceed with the decedent’s appeal.
If the appellant dies before the Board renders a decision on a pending appeal, the Board will dismiss the appeal and return it to the ROJ.
If a person eligible to receive accrued benefits makes a claim to substitute the decedent’s claim or appeal, the ROJ will decide the basic eligibility for substitution. Any adverse determination on basic eligibility is appealable to the Board.
If found eligible, the substitute claimant will receive the same docket number that was assigned to the original appellant’s appeal.
Use the table below to handle the appeal when VA receives notice of the appellant’s death.
Scroll sideways to see the full table.
| If the claims folder is under the jurisdiction of the … | Then … | And … |
|---|---|---|
| RO | update VACOLS to show “ Withdrawn Death of Veteran. ” | if VA was notified of the Veteran’s death within one year, provide an application for accrued benefits to any potentially eligible survivors. Reference: For more information on providing an application for accrued benefits, see M21-5 Chapter 7, Section J.3.b. |
| DROC | request return of the claims folder from DROC DC if it does not independently return the claims folder to the ROJ. | address any potential benefits for eligible survivors. |
| Board | provide the Board Inbound Operations Team with evidence of death (e.g., death certificate and/or Social Security Administration printout). | Note: If the appeal is in an active or remand status, email evidence of death to the Board’s Inbound Operations Team at BVACSBTeam@va.gov. Note: The email should include the Veteran's name, file number, date of death, and reference to where the evidence can be found in the eFolder (such as date of receipt, document label, etc.) |
| OGC | notify the appropriate OGC staff, CAVC Litigation Staff. | Result: OGC will notify the appropriate court, if necessary. |
References: For more information on
- VACOLS coding, see the VACOLS User Guide, and
- FNOD Processing, see M21-1, Part XI, Subpart i, 1.A.
7.J.3.b. Providing Accrued Benefits Application
A claim for accrued benefits or request to substitute is necessary to act on a claim or appeal pending before VA at the time of the Veteran's death.
If VA is notified within one year following the death of the Veteran
- review the claims folder for names and addresses of potential claimants, and
- furnish them with one of the following accrued benefits application forms
- VA Form 21P-601, Application for Accrued Amounts Due a Deceased Beneficiary, or
- VA Form 21P-0847, Request for Substitution of Claimant Upon Death of Claimant.
Note: Send VA Form 21P-0847 when there is no evidence of accrued benefits and a claim or appeal was pending at the time of the original claimant’s death.
References: For more information on
- developing for accrued benefits and requests to substitute, see M21-1 Part XI, Subpart ii, 3.C
- determining the payment period based on the date of death, see M21-1 Part XI, Subpart ii, 3.D.1.g, and
- appeals pending at the time of death, see
- Cates v. Brown, 5 Vet.App. 399 (1993)
- Oseo v. Brown and Landicho v. Brown, 7 Vet.App. 42 (1994)
- Edmonds v. Brown, 9 Vet.App. 159 (1996), and
- Reeves v. Shinseki, 682 F.3d 988 (2012).
7.J.3.c. Death Occurring During the One Year Appeal Period
If the original claimant's death occurs within the one-year period in which an NOD may be filed
- the claim is considered pending, and
- a substitute claimant may file an NOD.
Reference: For more information on accrued claims and requests to substitute, see M21-1, Part XI, Subpart ii, 3.C.