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VA Benefits for Surviving Spouses of Veterans and the Promise to Address Comprehensive Toxics (PACT)

The Court of Appeals for Veterans Claims (CAVC) recently published an opinion including a concurrence by Judge Jaquith that explains the procedures the widow of a veteran should follow to obtain VA benefits or appeal an adverse decision. The case is titled Carmen Encarnacion v. Denis Mcdonough, and broadly discusses the different ways a widow, or widower, of a veteran should apply for VA benefits. The specific issue was jurisdictional, and is relatively complex; but, even setting aside the narrow issue, the case is valuable to a general audience for its discussion about Dependency and Indemnity compensation procedures, accrued benefits procedures, substitution procedures, and survivor pension procedures.

The facts involve Ms. Carmen Encarnacion who was married to Mr. Idilio R. Aparicio, a veteran. Mr. Aparicio applied for compensation benefits, and the VA initially denied the claim; but he appealed to the BVA and won. The BVA awarded benefits. Mr. Aparicio, however, tragically died before the compensation arrived. When the compensation did arrive via the VA Regional Office, Ms. Encarnacion filed a Notice of Disagreement arguing that the veteran was unemployable thereby claiming more monetary compensation. (The history of this case is complicated and occurred in the legacy system).

In response to the NOD, the VA Regional Office sent two documents to Ms. Encarnacion: (1) a letter stating that since the BVA issued the award, the VA Regional Office (VARO) was rejecting the NOD and advising her to file an appeal with the CAVC, and (2) a Statement of the Case (SOC) implicitly recognizing the NOD. So, the VA Regional Office (VARO) did two mutually exclusive things. The VARO rejected the NOD, but then the VARO "accepted" the NOD and issued an SOC. Understandably, the became even more confusing after that. Ultimately the BVA heard the case again and decided to decline jurisdiction by rejecting the NOD.

The CAVC found that the BVA should not have rejected the NOD categorically. Instead, the BVA should follow what this writer calls the Ratliff Procedure. Under the Ratliff Procedure, the BVA should have examined Ms. Encarnacion's NOD and decided whether it constituted a petition to reconsider the BVA decision and award more higher accrued benefits to the deceased veteran. In doing so, the CAVC included a thorough and clear discussion of the procedures a widow should follow to obtain VA benefits. This is where the opinion and concurrence are valuable to a wider audience.

Judge Jaquith wrote: "Under 38 U.S.C. 5121(a), monetary benefits to which a veteran was entitled at death under existing ratings or decisions or those based on evidence in the file at the date of death -- referred to as 'accrued benefits' -- are payable to the veteran's spouse. If a veteran dies while he or she has a claim for benefits pending, a person who would be eligible to receive accrued benefits under section 5121(a) may 'file a request to be substituted as the claimant for the purposes of processing the claim to completion.' 38 U.S.C. 5121A(a)(1). Even if a surviving spouse submits no specific request to substitute, the spouse's claim for (a) accrued benefits, (b) survivors pension, or (c) dependency and indemnity compensation (DIC) is deemed to include a request to substitute if such a claim was pending before the agency of original jurisdiction or the Board when the claimant died. 38 CFR 3.1010(c)(2) (2014). Before VA promulgated Section 3.1010(c)(2), it deemed a surviving spouse's claim for accrued benefits as also requesting substitution. See Reeves v. Shinseki, 682 F.3d 988, 993 (Fed. Cir. 2012) (noting that VA Fast Letter 10-30 had provided, since August 2010, that 'To request substitution, an eligible survivor may file either a claim for accrued benefits or a request for substitution. Accrued benefits claims and requests for substitution shall be treated as one and the same.'); Reliford v. McDonald, 27 Vet. App. 297, 303 (2015) (noting that Fast Letter 10-30 stated that 'receipt of a VA Form 21-534 will be accepted as both a claim for accrued benefits and a substitution request.')."

As noted in Judge Jaquith's concurrence, multiple VA programs exist under which a surviving spouse may apply for VA benefits. This would include compensation benefits more broadly available under the PACT Act. The case shows, with crystal clarity, that shepherding a claim through the process, however, is not always easy or simple.

If you are a surviving spouse and feel you need assistance, then please reach out to the Law Office of Andrew Rutz for a free consultation either via telephone or email at or (812) 530-6137. Thanks for reading this, and -- as always -- take care.

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