Va Fl 10-45

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NOTE:

VA_Fast_Letter_10-45.pdf

DEPARTMENT OF VETERANS AFFAIRS

Veterans Benefits Administration

Washington, D.C. 20420

October 21, 2010

Director (00/21)

All VA Regional Offices and Centers

Fast Letter 10-45

SUBJ: Delayed Payment Provision of 38 C.F.R. §3.31 and Certain Dependency and Indemnity Compensation (DIC) Awards for Schoolchildren

Purpose

This letter revises procedures for awarding DIC benefits to a child receiving benefits under an apportioned DIC award (e.g., a surviving spouse exists) when the child becomes entitled to DIC based on school attendance.

We have determined that the delayed payment provision of 38 C.F.R. §3.31 (i.e., "Omnibus" or "OBRA") does not apply in this situation.

Background

When a surviving spouse exists, a minor child [under age 18] is not independently entitled to DIC. If the minor child is in the custody of the surviving spouse, the surviving spouse receives an additional allowance for the child. If the minor child is not in the custody of the surviving spouse, VA generally apportions the additional allowance to the child's fiduciary.

When a surviving spouse exists, a child who attains age 18 and is attending school is eligible for a separate award at the DIC schoolchild rate (see 38 U.S.C. §1314©). If the child is receiving benefits under an apportioned DIC award, current procedures (M21-1MR Part, III, Subpart iii Chapter 6, Section B.5.e) are to make a separate award to the schoolchild effective the date of his or her 18th birthday, continuing the apportioned benefit rate; effective the first day of the month following the child's 18th birthday, the award is adjusted to pay the schoolchild rate.

However, when a surviving spouse exists, the schoolchild rate is less than the minor child apportioned rate. Therefore, the delayed payment provision of 38 C.F.R. §3.31 does not apply. Procedures are revised as follows.