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]

Now this is downright interesting:

http://www.attiglawfirm.com/shoot/veteran-survivor-accrued-benefits-va/

CLEAR AND UNMISTAKEABLE ERROR (CUE).

“CUE” claims are another way that a Veteran’s claim might survive his or her death.

A CUE claim is specific kind of error - one which is so clear that reasonable minds could not differ in reaching a particular conclusion, and one where the result would have been manifestly different but for the error.

A CUE claim typically does not involve an interpretation - or misinterpretation - of a fact (although it can be); more commonly it is an administrative failure to apply the proper statutory and regulatory provisions to the correct and relevant facts.

A surviving spouse will often file a claim for DIC - after the death of their Veteran Spouse; if the VA denies this DIC claim on grounds related to a prior unsuccessful claim of the Veteran (commonly, a prior denial of service-connection for a condition which later played a role in the Veteran’s death), then the Surviving Spouse can properly assert, in the context of the surviving spouse’s own DIC claim, that a prior decision denying the Veteran’s claim was the product of “clear and unmistakeable error”, or “CUE”.

The spouse’s argument, plainly stated, is that but for the CUE of the VA or BVA in a prior decision related to the Veterans’ claim, the Spouse would be entitled to DIC benefits.

Edited April 1, 2015 by free_spirit_etc

[red]

I am a 100% P&T for the last 14 years, I am 75 years old, have a wife that had a incapacitating stroke 10 years ago.. She draws $145.00 A&A. My question for the board is what form do I fill out, do I have to show my net worth. My kids are past 50 years old.

I need to make it clear for them to fill out the dic form as quick as possible. It is a little confusing like much of Tthe va forms are. Would the board please clarify what needs to be done if I pass away to make it easy for my kids. No way my spouse could do it due to not being able to think or write clearly. I am not in any hurry to go,Lol.

THANKS,

RED

[Berta]

This is the form that covers DIC .

http://www.vba.va.gov/pubs/forms/VBA-21-534-ARE.pdf

We recently did a radio show on what we need to have available for our survivors when we die.

http://www.blogtalkradio.com/haditcom/2015/07/15/haditcom-blog-talk-radio-berta-simmons-why-we-need-a-death-folder

I also did a follow up topic on that here

[Buck52]

Red,

Take Ms berta Advice, and click on her links & copy the form numbers down, and if your not sure how to fill them out?

if your able to call or go to any Vet center or DAV Local DAV Office, or VA social workers office and ask them to help you fill out thee DIC forms, AND PUT IN A SAFE PLACE WITH YOUR INSTRUCTIONS AND LET YOUR CHILDREN KNOW WHERE THEY ARE INCASE SOMETHING HAPPENS TO YOU

and check with your Local Veterans Admin Medical Center bout Advance Directives.

btw you ever heard the song Country Music Female singer ''Loretta Lynn'' sings ''Everyone wants to go to heaven but no body wants to die''.

.........................Buck