Citation Nr: 20021386 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-34 177A DATE: March 25, 2020 ORDER Substitution of the Appellant for the Veteran for the purpose of entitlement to accrued benefits is granted. REMANDED Entitlement to special monthly pension benefits for the purpose of accrued benefits on the basis of substitution is remanded. FINDING OF FACT The Appellant filed a substitution request in January 2015 with evidence demonstrating that he bore expenses related to the Veteran’s last sickness and burial. CONCLUSION OF LAW The criteria for substitution of the Appellant for the Veteran for the purpose of accrued benefits have been met. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1944 to February 1946. He died in December 2014. The Appellant, the Veteran’s son, has appealed a March 2018 decision that denied his request to substitute for the Veteran for the purpose of pursuing a claim of entitlement to special monthly pension benefits that was pending at the time of the Veteran’s death for the purpose of accrued benefits. The Board notes the Appellant submitted a request to opt into the Rapid Appeals Modernization Program (RAMP) in June 2018; however, survivors are not eligible for RAMP, as the program was limited to eligible veterans with pending compensation claims. Nevertheless, the applicable statutes and regulations, outlined below, are the same whether the Appellant’s appeal is processed under the legacy or modernized review system. If a claimant dies on or after October 10, 2008, a person eligible for accrued benefits under 38 C.F.R. § 3.1000(a) listed in 38 C.F.R. § 3.1000(a)(1) through (5) may, in priority order, request to substitute for the deceased claimant in a claim for periodic monetary benefits (other than insurance and servicemembers' indemnity) under laws administered by the Secretary, or an appeal of a decision with respect to such a claim, that was pending before the agency of original jurisdiction or the Board of Veterans’ Appeals when the claimant died. 38 C.F.R. § 3.1010(a). Upon VA’s grant of a request to substitute, the substitute may continue the claim or appeal on behalf of the deceased claimant for purposes of processing the claim or appeal to completion. Id. A request to substitute must be received by the AOJ no later than one year after the claimant’s death. 38 C.F.R. § 3.1010(b). A request to substitute must be submitted in writing. 38 C.F.R. § 3.1010(c). At a minimum, a request to substitute must indicate intent to substitute; include the deceased claimant’s claim number, Social Security number, or appeal number; and include the names of the deceased claimant and the person requesting to substitute. Id. A person filing a request to substitute must provide evidence of eligibility to substitute. Evidence of eligibility to substitute means evidence demonstrating that the person is among those listed in the categories of eligible persons in 38 C.F.R. § 3.1000(a)(1) through (5) and first in priority order. 38 C.F.R. § 3.1010(d). In January 2015, the Appellant submitted a written statement, stylized as a notice of disagreement, that requested a hearing regarding an October 2015 denial of special monthly pension benefits for the Veteran. The Appellant also submitted additional evidence to support the claim that was not of record at the time of the October 2015 decision. The Board finds the Appellant’s January 2015 written statement meets the requirements of a request to substitute under 38 C.F.R. § 3.1010 in that it includes all the required information and indicates an intent to substitute, as it clearly signals the Appellant’s desire to pursue the previously denied claim. The Appellant also submitted evidence in January 2015 demonstrating that he is among those listed in the categories of eligible persons for accrued benefits in 38 C.F.R. § 3.1000(a)(1) through (5) to the extent that he provided evidence that he bore expenses related to the Veteran’s last sickness and burial. The Board acknowledges the Appellant was awarded a $2,000 burial benefit in February 2015, but this does not cover the full amount of expenses that he appears to have incurred as a result of the Veteran’s last sickness and burial. In sum, the Board finds the Appellant should be substituted for the Veteran for the purpose of pursuing the claim that was pending at the Veteran’s death. The Appellant submitted a written statement in January 2015 that meets the requirements of 38 C.F.R. § 3.1010. This request to substitute was received within one year of the Veteran’s death in December 2014. The Appellant has also submitted evidence demonstrating he is eligible for accrued benefits under 38 C.F.R. § 3.1000(a)(5). As a result, substitution of the Appellant for the Veteran is warranted, and, to this extent, his appeal is granted. REASONS FOR REMAND The Agency of Original Jurisdiction must readjudicate the issue of entitlement to special monthly pension benefits for the purpose of accrued benefits in light of the Board’s decision regarding substitution to ensure the Appellant is afforded due process. See Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003). The matter is REMANDED for the following action: After providing the Appellant adequate notice of his rights as a substitute for the Veteran, adjudicate the issue of entitlement to special monthly pension benefits for the purpose of accrued benefits based on all the evidence of record. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.