On Nov. 14, 2012, the Court of Appeals for Veterans Claims CAVC issued an opinion in Copeland v. Shinseki. Foremost, the CAVC rejected the claimants argument that Congress’s assignment of the effective date of enactment for 38 U.S.C. § 5121A violated equal protection under the 5th Amendment, U.S. Constitution. Second, the CAVC rejected claimants argument that the VA failed to provide an adequate medical opinion pursuant the statutory duty to assist for dependency and indemnity compensation (DIC).
It is worth reviewing the distinction between a substituted claimant and accrued benefits under Title 38. 38 U.S.C. § 5121A, enacted on October 10, 2008, permits the surviving spouse of a veteran to be substituted in a pending claim for benefits if the substitution is sought within one year of the veteran’s death. Prior to the enactment of this provision, the surviving spouse was required to file a claim for accrued benefits pursuant to 38 U.S.C. § 5121(a). As the CAVC noted, a major distinction between the two provisions is that under 38 U.S.C. § 5121A, a substituted claimant could submit additional evidence and generally stand in the place of the deceased veteran. Alternatively, accrued benefits under 38 U.S.C. § 5121(a), only permits a surviving spouse to file for unpaid benefits or claims “based upon the evidence in file at date of death.”
If you are the surviving spouse or dependent of a recently deceased veteran and have any questions about accrued benefits or VA survivor benefits such as DIC, please do not hesitate to contact me for a free consultation at sdirector@FRE-L.com or (732) 382-6070.