Dic Overview

[Berta]

The DIC regulations sometimes get lost in the shuffle:

http://benefits.va.gov/compensation/types-dependency_and_indemnity.asp

"Eligibility (Surviving Spouse)

To qualify for DIC, a surviving spouse must meet the requirements below.

The surviving spouse was:

Married to a Servicemember who died on active duty, active duty for training, or inactive duty training, OR
Validly married the Veteran before January 1, 1957, OR
Married the Veteran within 15 years of discharge from the period of military service in which the disease or injury that caused the Veteran's death began or was aggravated, OR
Was married to the Veteran for at least one year, OR
Had a child with the Veteran, AND
Cohabited with the Veteran continuously until the Veteran's death or, if separated, was not at fault for the separation, AND
Is not currently remarried

Note: A surviving spouse who remarries on or after December 16, 2003, and on or after attaining age 57, is entitled to continue to receive DIC.
Eligibility (Surviving Child)

Not included on the surviving spouse's DIC, AND
Unmarried, AND
Under age 18, or between the ages of 18 and 23 and attending school."

"Evidence Required

Listed below are the evidence requirements for this benefit:

The Servicemember died while on active duty, active duty for training, or inactive duty training, OR
The Veteran died from an injury or disease deemed to be related to military service, OR
The Veteran died from a non service-related injury or disease, but was receiving, OR was entitled to receive, VA Compensation for service-connected disability that was rated as totally disabling
For at least 10 years immediately before death, OR
Since the Veteran's release from active duty and for at least five years immediately preceding death, OR
For at least one year before death if the Veteran was a former prisoner of war who died after September 30, 1999
http://benefits.va.gov/compensation/types-dependency_and_indemnity.asp


They forgot to mention Section 1151, 38 USC DIC on this VA web page.

Here it is:

http://helpdesk.vetsfirst.org/index.php?pg=kb.printer.friendly&id=80#c419

"4. Section 1151 Benefits - Injured by VA Care or Medical Treatment
4.1. Section 1151 Benefits

Pursuant to 38 U.S.C. section 1151, claimants who were injured by VA care or medical treatment may be entitled to compensation. Jackson v. Nicholson, 433 F.3d 822, 824 (Fed. Cir. 2005). Section 1151 provides that compensation shall be awarded for an additional disability or death "in the same manner as if such additional disability or death were service-connected." The additional disability or death is qualifying if:

not the result of the veteran's willful misconduct and:
the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary . . . and
the proximate cause of the disability or death was –

- carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or

- an event not reasonably foreseeable or

- the provision of training and rehabilitation services or participation in a compensated work therapy program.

38 U.S.C. § 1151(a). To be entitled to VA benefits, any additional disability must not be merely coincidental with VA medical treatment, but must stem from some fault in the care that was provided, including "carelessness, negligence, lack of proper skill, error in judgment, or some other similar instance of fault." 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(d)(1); Loving v. Nicholson, 19 Vet. App. 96, 100 (2005). Section 1151 does compensate for issues arising from care provided on a fee basis or by non-VA physicians working at VA facilities. 38 C.F.R. § 3.361(f).

To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (2) VA furnished the care, treatment, or examination without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the disability. The event does not have to be "completely unforeseeable or unimaginable" but it must "be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided." 38 C.F.R. § 3.361(d)(1).

"To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the . . . medical or surgical treatment . . . upon which the claim is based to the veterans condition after such . . . treatment." 38 C.F.R. § 3.361(b). An additional disability is actually caused by VA care, treatment, or examination when the VA care, treatment or examination "resulted" in the additional disability. 38 C.F.R. § 3.361©(1). If an additional disability is caused by a veteran's failure to properly follow medical instructions, such a disability will not be considered to be caused by VA hospital care or medical treatment. 38 C.F.R. § 3.361©(3).

A Board determination regarding entitlement to compensation under section 1151 is a factual finding that this Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); Look v. Derwinski, 2 Vet. App. 157, 161-62 (1992). "

http://helpdesk.vetsfirst.org/index.php?pg=kb.printer.friendly&id=80#c419

This type of claim almost ALWAYS needs an IMO.

[free_spirit_etc]

This isn't a walk-in - but it a very interesting appeal at the BVA concerning the 10 year rule. http://www.va.gov/vetapp13/Files4/1335954.txt

In this case, the BVA determined that though the Veteran (who died in 2008) was granted a 1999 date for TDIU, he had an informal claim for TDIU pending at the time of that decision that was not addressed (based on a letter the veteran submitted in 1997 to support a different claim). Also interesting that was that the veteran was still working in 1999, but the BVA determined he was unemployable earlier than that.

[free_spirit_etc]

This could be good resource for this thread. They are videos of Attorney, Ken Carpenter, giving a training on Accrued Benefits to Vet Reps.

Edited March 7, 2015 by free_spirit_etc

[Berta]

Just to add, there are husbands, as surviving spouses, who are also eligible for DIC.

I think we had husband of a deceased veteran here many years ago.

I posted this BVA award this AM for a deceased veteran's husband here, because it contained some good info on toxic exposure claims, and I posted what I believe is the same IMO doctor's web site info:

http://www.va.gov/vetapp99/files2/9915488.txt

I heard that Gold Star Wives ( I am a member) has husbands in their membership too.

That would sure not surprise me.

The president of MADD (Mothers Against Drunk Drivers) for many years was a man and also his son was killed by a drunk driver.,

Edited March 7, 2015 by Berta

[free_spirit_etc]

Good point Berta -- and it is especially important with the more recent generations of service members.

Also, same sex spouses should now be eligible.

Edited March 7, 2015 by free_spirit_etc

[Buck52]

I heard of Ken Carpenter back years ago! (All Good) Mid 90's

Is he still practicing?

...............Buck!

[free_spirit_etc]

I heard of Ken Carpenter back years ago! (All Good) Mid 90's

Is he still practicing?

...............Buck!

Here is a December 2014 case of his at the BVA

http://www.va.gov/vetapp14/Files7/1455266.txt