Ah. The Bat signal in the sky over Gotham indicates it’s that magic moment when we convene for another evening of VA-sponsored entertainment. You’d have to concede they give us plenty of fodder to chew on. Between constant changes in the law, congressional giveaways that slow it down to a snail’s pace and VA’s general ignorance, it’s a never-ending battle to stay on top of things.
Tomorrow night, John and Ray have asked me to expound on all the iterations of Dependents Indemnity Compensation- generally referred to as DIC. It’s intriguing that they asked me to give this briefing because the other day I saw a gal’s query on the subject on my favorite Vietnam Veterans’ Face Place™. The FB page is called Vietnam Veterans The Best of the Baby Boomers. I answered her query because a number of others had commented and obviously weren’t up to speed on the DIC subject.
Truth is, I stepped on my necktie and fell in, too. But, just to be sure, I delved into the regulations on it to be safe and went back in and corrected myself by supplying the correct answer. The fact of the matter is that it’s not my forte, per se. I only do DIC stuff when my client passes away. It’s a favor I gladly indulge because what the hey?- I’d sure be glad if someone did it for Cupcake if I augered in.
Filing for DIC isn’t complicated unless your client has a pending claim. In those cases, I have to file the surviving spouse for substitution. For the benefit of the listeners tomorrow night, I attach two documents here for reference. One is the VA Form (VAF) 21P-0847 for substitution. Do not let anyone tell you you do not need to file it. (see comments below) You have one year to jump in and salvage the existing claim.
I’ve had VSOs who tell the spouse to just file the VAF 21P-534 EZ only and check the boxes. That won’t cut it. Worse, VA isn’t in the habit of writing to tell you to be sure to get your substitution document (or the 534) in pronto. Fact is, VA isn’t in the habit of doing anything in a pro-Veteran sense for the most part. Some of the rating decisions (RDs) I read are a masterpiece of ambiguity. I’m guessing I’ve read over two thousand that say little more than “Sorry. You are not eligible for a&a.” No reason. No rationale. No “here’s what you need to win but you don’t qualify.”
By rights, your RD should have a blurb at the very end that says Favorable findings and another somewhere that indicates what you need to get there. But gosh. Since when did VA ever follow the rules? Here’s the first-the VAF 21P-534EZ. The pages are numbered to include the instructions but using their page numbers, page 10, box #2 I, you’ll find the correct place to check off your choice.
Yep. It says you can check off “accrued benefits”. That’s VA-speak for a pending claim that existed when your partner went tits up. Even VA employees will insist this is all you need to ensure you’re substituted. Don’t fall for it.
U.S. Special Forces troops stationed at BuPrang Special Forces camp 110 miles northeast of Saigon, run for cover as dust settles from an exploded enemy mortar shell that just landed immediately behind them in 1969. (AP Photo)
Here’s the VAF 21P-0847 for substitution. The funny thing is it soesn’t capture the spouse’s date of birth but don’t worry. That question is on the 534 so they actually need both forms to even make this fly properly. I “de-templated” it for this post. I put my VA email and office telephone number on mine to ensure they don’t get too hyperspazzed out and come unglued when they receive it.
One thing I’ve learned in this business is that if you use an old, outdated form to apply, they’ll always kick it back to you and say ‘sorry charlie’ and ask you to resubmit the proper most recent version. Of course, they don’t actually tell you that you used an outdated one. They just say they can’t accept it because it’s “defective”. They leave it up to you to decypher.
So, here are the commo links for tomorrow evening. Feel free to chime in if you’re confused. That’s why we do this. Actually, of all the VA endeavors you may undertake, this one is probably the easiest for amateurs to do. The turn around time averages about two to three weeks unless there is some unforeseen complication but we’ll try to cover those eventualities on the show.
The telephone number remains unchanged (515) 605-9764
the computer link, if you choose that route:
https://www.blogtalkradio.com/jbasser/12256715/connect/342651d8fb67743bf51871b3f148d8a70504798a
Dial one (1) to speak to party you wish to speak to. We don’t have any Ernestines working here but I do a dang good imitation of her. Come to think of it, so do the VA gomers who call me.
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
Veterans Claims Help 
While I value my cohort’s comments on the subject of whether to, or not to, submit a VAF 21P-0847, my experiences in this matter reflect the frequent inability of the VA to comprehend their own regulations-let alone follow them.
1) From my personal perspective, depending on the M 21 is a fool’s errand. First, it is revised, on average, 135 times a year-hence it only exists in electronic format rather than printed. Unless specifically mentioned by the VBA, one is precluded from using it to argue one’s case at the BVA.
2) As an example of the M 21’s inaccuracy, VA insists a Veteran must have a 100% rating in order to even be considered for aid and attendance. I have proven the fallacy of that numerous times on appeal at the BVA. I’ve also been cut off at the knees by Veterans Law Judges before I can even complete the phrase “M 21” at oral argument. I’ve been told to cite to 38 CFR or USC or shut up.
3) VA CESTs (Claim ESTablished) two (2) different EPs (140 & 165) for the two functions (DIC versus Accrued). Frequently, they will close out one or the other EP inadvertently, or worse- ignore the request for substitution for months past the suspense date, thus impeding any timely decision on an accrued claim.
4) I’m a former Boy Scout. I like to be prepared for any contingency. I always carried two hand grenades wherever I went in Vietnam-even to the loo. If one didn’t work, I always had a backup.
This being America, we are blessed to be able to have our own opinions on any given subject. While I respect Jim’s analysis, and more than concede he is essentially correct, my belief is simple. If it can possibly go wrong, it will. To me, filing both forms is almost a guarantee that they can’t screw it up. The operable word here is ‘almost’. If the VA had an impeccable track record with respect to their job, Jim and I would be superfluous and out of a job in short order. His and my continued employment in this endeavor is proof positive the VA’s practices leave much to be desired. And lastly, I’d cite to the Occam’s Razor theorem- the mere fact that VA has a form for substitution implies strongly that there must be for a reason for it.
As I stated earlier, I agree that filing the substitution form is advisable. My point is that it is not required. Relying on the M21 is not a fool’s errand. All VA employees at the RO level are REQUIRED to follow the M21 (BVA is not). I win appeals every day by citing to the M21. In fact, citing to anything other than the M21 when appealing at the RO level is likely worthless because RO personnel routinely ignore statutes, regulations and caselaw but they generally DO pay attention to their Bible (i.e., the M21 manual).
Sorry. I guess I misconstrued “for substitution to avoid is advisable [sic]”. Otherwise, I disagree. VA has a marked proclivity to deny virtually any and all higher SMCs without even considering them in the first instance (Akles rule) as opposed to how they grant SMC S.
When I do an Informal conference, the very first thing I do is query the DRO on his or her knowledge of SMC at the higher rates. Each and every one states they depend totally on the M 21 for guidance as it isn’t their strong suit. Or… they say they rely on the SMC Calculator. So…garbage in = garbage out. I’m batting about 2/10 at R1/R2/T at the AOJ so that tells me it’s useless in all but the most extreme cases. However, using 38 CFR, I’m batting 100% at the BVA. As they say in golf, “you drive for show but you putt for dough.”
The M 21 might work well for flat feet, tinnitus and hemorrhoids but there’s an entirely different metric involved when you’re trying to get them to pull the trigger on $10,567.47 per month. The level of ignorance at the AOJ regarding SMC is legendary-hence my reliance on statute, regulation and Westlaw rather than the equivalent of Ikea instructions on how to assemble a bookshelf.
I agree about SMC Alex. The M21 doesn’t help for anything that complex.
While I agree that filing a VAF 21P-0847 for substitution to avoid is advisable, I disagree that it is required when a VA Form 21-534EZ is filed within one year of death. See the following M21 provisions:
XI.ii.3.C.1.a. Applications for Accrued Benefits
A claim for accrued benefits may be filed on the following applications:
VA Form 21P-601, Application for Accrued Amounts Due a Deceased Beneficiary
VA Form 21P-534, Application for Dependency and Indemnity Compensation, Survivors Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable)
VA Form 21P-534EZ, Application for DIC, Survivors Pension, and/or Accrued Benefits
VA Form 21P-535, Application for Dependency and Indemnity Compensation by Parent(s) (Including Accrued Benefits and Death Compensation When Applicable), or
VA Form 21P-0847, Request for Substitution of Claimant Upon Death of Claimant, only if submitted by a surviving spouse and the substitution determination results in the claimant being recognized as a valid substitute.
Notes:
If the claimant submits a VA Form 21P-534EZ and does not check the accrued radio button, the Department of Veterans Affairs (VA) is still obligated to address the claimant’s entitlement to accrued benefits under 38 CFR 3.152(b).
VA Form 21P-0847, is not considered a prescribed form for accrued benefits for claimants other than a surviving spouse that meets the criteria listed above. If accrued benefits exist follow M21-1, Part XI, Subpart ii, 3.C.1.c to request the proper application for accrued.
VA Form 21P-534 and VA Form 21P-534EZ can be used to grant accrued benefits based on relationship. If an adult child who is not entitled to benefits by relationship applies using either form, send the claimant VA Form 21P-601.
XI.ii.3.C.1.b. Applications for a Request to Substitute
A standard application is not required to request to substitute. A request to substitute, from an individual in the categories of eligible persons, is deemed to be included when VA receives a
claim for
accrued benefits
Survivors Pension, or
Dependency and Indemnity Compensation (DIC), or
a written request to substitute containing the
intent to substitute
name of the person requesting to substitute
name of the deceased claimant, and
deceased claimant’s
claim number
Social Security number, or
appeal number.
So, VSOs who tell the spouse to just file the VAF 21P-534 EZ are not wrong.