Cathemm55 - New Member - Dic Questions

[cathemm55]

My husband and I were married thirty years, and divorced for ten months, but we continued to live together as he was diagnosed with cancer. He served in the navy for twenty years, he retired E7. I applied for DIC and was denied on the grounds that we were divorced, but I have been researching and have heard of claims being approved under lesser circumstance, i.e 'common law' I know a certain amount of information, of people being together for much shorter periods of time and been approved, can anyone help me other than the volunteers at DAV, I feel there is more information on this web site than the kind volunteers have knowledge of. Any help would be greatly appreciated thank you

[georgiapapa]

I hope there is some way this lady can qualify for DIC because I believe she really deserves it. However, I do have some concerns as to whether or not the VA will recognize the claimant's marriage to the veteran and consider her to be eligible for DIC benefits. I am definitely not an expert on DIC issues so my concerns may not be valid.

Wouldn't the common law marriage have to be recognized in the state where the veteran and claimant resided?

If the common law marriage is recognized, there was a legal divorce prior to the common law marriage so it appears there was a break in marriage. The common law marriage, if recognized, lasted ten (10) months until the veteran's death. It is my understanding the VA will not permit the claimant to use two periods of marriage to meet the minimum one (1) year marriage minimum requirement between the claimant and the veteran before the death of the veteran.

In this case, wouldn't the VA conclude the claimant was using two periods of marriage to try to meet the one (1) year minimum requirement and deny her claim?

[Berta]

Common law is determined by state:
http://www.ncsl.org/research/human-services/common-law-marriage.aspx

VA has it's own way of dealing with common law situations.

But, in my experience with a few common law spouses, they must meet the state criteria as well as the VA criteria.

A BVA search under common I just did brought this up
"41814 results — searched 817135"
It is not an unusual survivor status.

I feel this surviving spouse must get an lawyer to handle her appeal ,,, a lawyer in her state who knows common law regs as well as DIC regs.

This recent BVA award reveals how the BVA handles these cases:
http://www.va.gov/vetapp14/Files5/1435135.txt

As Navywife stated the regs .... if there are children, they could possibly be eligible for DIC even if the spouse isn't.

But the key issue, even if the spousal status is resolved favorably ,is whether the veteran died of a SC disability causing or contributing to death.

We need much more info the widow here.

"Wouldn't the common law marriage have to be recognized in the state where the veteran and claimant resided?" Yes.

I dont know what state this cohabitation was in.

"In this case, wouldn't the VA conclude the claimant was using two periods of marriage to try to meet the one (1) year minimum requirement and deny her claim?" possibly but each case like this is unique.

We have had similar situations here over the last 16 years, and they can be searched for,

I believe that a claimant, if divorced and then continuously cohabited in a common state with the same veteran (under that state's specific common law recognition guideines) could potentially be eligible for DIC.

Also if the vet had PTSD or any MH issue that also could be a factor.

But these cases involve many factors and I am just speculating because the prime issue ,after the marital status is resolved, is whether the surviving spouse if eligible for DIC under the rest of the DIC regulations....ie.... death due to or contributed to by a service connected disability.

Edited October 17, 2014 by Berta

[john999]

While waiting for DIC what happens to ChampVA status and other benefits that spouse is getting as result of being married to P&T vet? Example: P&T vet dies. Compensation stops upon death. Widow must apply for DIC. In the meantime do all benefits spouse was getting stop? Spouse is left naked until DIC approved? Just an aside.

[Berta]

John, if the vet had 100% P & T in their lifetime then I would think the CHAMPVA would definitely continue,even if VA denies a SC death for DIC purposes.

And many CHAMPVA awards of that type, like mine, have a favorable EED back to the date the VA found the vet 100% P & T or TDIU P & T.

In cases where the vet did not have that rating but had a pending claim in their lifetime (as in my case) and if the pending claim succeeds for the 100 or TDIU P & T, then that also awards the dependent CHAMPVA under that award basis.

However a CHAMPVA award based on a service connected death (DIC) that did not involve any prior or pendind SC P & T claim

(meaning the DIC claim might have been the survivor's and the deceased veteran's initial VA issue)

if successful, would award CHAMPVA back to the day the veteran died.

This is why it is imperative for vets to claim anything that could possibly cause their death, and why spouses need to get PC literate if they arent , and be able to substitute themselves as the claimant, if a vet dies with a pending claim dies during it's progress.

Nehmer claims are different and 1151 awards are too.

The VA can fatally harm or contribute to the death of a veteran,and if proven by medical evidence the spouse will receive DIC.

But they will not receive CHAMPVA nor any other of the ancillarty benefits that a direct SC dreath would warrant.

It is also imperative that ,if a survivor seeks "accrued benefits" he./she MUST (unless a Nehmer claim) substitute themselves as the claimant within one year after the veteran's death to redceive an award of accrued retro ,if the accrued claim succeeds.

BTW, I mentioned this before but it pays to repeat.

My husband died at 30% PTSD with 2 claims pending, one under 1151 and a TDIU claim.

he was posthumously awarded 100% P & T for PTSD in an accrued award I got in 1997.

That gave me and my daughter (already in the Military,) CHAP 35 as well as CHAMPVA for me, Award dated 1997 ,EED 1991.

They never mentioned the TDIU claim and I think that is because when you die you are obviously unemployable and the medical evidence showed PTSD was P & T and 100% until death.

Because I had filed an accrued claim, this is why they had to pay me for my SMC CUE claim.

because I also was under Nehmer they also had to award me direct SC death under DMII from AO (2010) and then IHD death (2012)

I got DIC under 1151 in 1998 and they say the are working on another DIC claim for me, which I think is a major snafu.

Although many 1151 issues must be compensated separately from SC issues ( My Nehmer award included 100% P & T under 1151 ,20 years after my husband had the 1151 stroke)

as far as I know they might pay a vet both 100% for 1151 and another 100% for 1151, as in my case, but I am unaware of them paying additional DIC under these two separate awards........

Then again, this is the first award of this nature with VA .......that I am aware of.......

Also a survivor should raise every potential reason for DIC.

I raised 3 issues and won on 2. The third issue was not denied but instead rendered moot by the BVA, since the award had already been made at the VARO level on a different basis.

DIC is a very complex issue sometimes.

Nehmer DIC is pretty cut and dried.Other cases can be very difficult and I believe I should start suggesting lawyers to any widows who the ROs have denied.

There is often not enough info here to really determine many DIC claims we get.

And as a widow said at VBN once,we here asked her too many questions.when she was denied.

But that is the only way we can really understand DIC claims.or any claims for that matter.