Reliford: The merits of substituting under Sections 5121 and 5121A

Reliford v. McDonald, Opinion Number 13-3048, was decided March 20, 2015 and is an interesting case on the merits of substitution of a surviving spouse under Sections 5121 or 5121A.

Sections 5121 and 5121A allow for substitution of a surviving spouse to gain accrued benefits.  Section 5121 is a separate and distinct claim from the deceased underlying claim and importantly must be made on the evidence that was either physically or constructively in the claims file at the time of death.  On the other hand, section 5121A is a procedural mechanism where a surviving spouse can be substituted in a pending claim and allows the ability to further develop the record, including imposing on the Secretary a duty to assist.

In this case, a mixed VA examination was of record (it originally recommended service-connection, but an addendum stated it reviewed additional evidence and changed her opinion to recommend against service-connection).  There was also a private physician opinion supporting aggravation.  The claim had already been subject to an appeal and remand from the Veterans Court to the Board on the issue of aggravation when the veteran died. 

The spouse submitted a VA form 210534 Application for DIC, Death Pension and Accrued Benefits.  The VA treated it as a request for substitution under section 5121A and send a notice saying they were working on her claim for substitution of claimant and  she may submit additional evidence in support or waive the opportunity to submit evidence.  The Board certified substitution and then remanded for additional development.  A new negative medical opinion was obtained by the VA.

Reliford argued the Board should not have processed her substitution under Section 5121A but 5121 and that as a result they should not have considered new evidence. VA agreed a spouse may seek benefits under either Section 5121 or 5121A, but noted it was processed as a request for substitution pursuant to VA policy and that such policy was beneficial for the vast majority of surviving spouses.

The Court recognized that the VA was attempting to help most spouses, but found “[n]onetheless, although the Secretary notified Mrs. Reliford that she could waive the right to submit additional evidence, he did not notify her that she could waive substitution, in contravention of his policy.”  Id. at *8.  As a result, the Veterans Court remanded the claim for a decision based on the record existing at the time of death.

Decision by CJ Kasold, joined by J. Davis.  J. Lance concurring in a separate opinion.