diabetes Spouse Passed Away Before Va Made Decision

[SSGMike.Ivy]

To help out a women whoes husband passed away she had the following question. I know the knowledge of some members here and appreciate the responses. I have been checking for answers for her and do not want to post the wrong information. From my understanding if your receiving VA disability you must have been receiving these benefits for 10 years prior to your death to have them passed on to your spouse. Is this correct?

==============Any her question==================

My beloved husband was rated 90% before he passed away from complications from Type II Diabetes. He had just found out about the Unemployability Claim and had applied before his death. The VA said and I quote "Any pending claims die with the veteran. I'm sorry." My husband proudly served in Vietnam for 2 tours and was in law enforcement for 30 years before PTSD and heart problems forced him to be homebound. I quit my very good job of 20 years to take care for him. I'm so happy I did as my heart breaks now, missing him but now I have almost nothing and I am so deeply depressed I can't even look for work. Can someone please help me? I wrote the DAV but they haven't answered back. Thank you.

[jamescripps2]

True, a veteran's claim dies with him, but a spouse can re open the claim. Was your spouse service connected for the diadetes? If so, and he died as a result of one of the residuals of diabetes, such as heart disease, then his death would have been as a direct result of service connected disease. The cause of death has to be on the death cirtificate as such. I think I am on the right track here. Berta and others might can weigh in on this one. I think that you may have a shot here.

[Boats]

He died from complications from Type II Diabetes? Is this what the death certifcate says? Was he Service Connected for it? If yes she should be able to get DIC she will need to make a claim for it. Using form VA FORM JUN 2005 21-534. Have one in our file box and wife knows how to file.

1. Dependency and indemnity compensation may be payablewhen:

a veteran's death occurred in service, or

a veteran dies of a service-connected disability, or

in certain circumstances if a veteran rated totally

disabled from service-connected disability dies from

non-service-connected conditions.

3.5 Dependency and indemnity compensation.

(a) Dependency and indemnity compensation. This term means a monthly payment made by the Department of Veterans Affairs to a surviving spouse, child, or parent:

(1) Because of a service-connected death occurring after December 31, 1956, or

(2) Pursuant to the election of a surviving spouse, child, or parent, in the case of such a death occurring before January 1, 1957.

(Authority: 38 U.S.C. 101 (14))

( Entitlement. Basic entitlement for a surviving spouse, child or children, and parent or parents of a veteran exists, if:

(1) Death occurred on or after January 1, 1957, except in the situation specified in §3.4©(2); or

(2) Death occurred prior to January 1, 1957, and the claimant was receiving or eligible to receive death compensation on December 31, 1956 (or, as to a parent, would have been eligible except for income), under laws in effect on that date or who subsequently becomes eligible by reason of a death which occurred prior to January 1, 1957; or

(3) Death occurred on or after May 1, 1957, and before January 1, 1972, and the claimant had been ineligible to receive dependency and indemnity compensation because of the exception in subparagraph (1) of this paragraph. In such case dependency and indemnity compensation is payable upon election. (38 U.S.C. 410, 416, 417, Public Law 92-197, 85 Stat. 660)

© Exclusiveness of remedy. No person eligible for dependency and indemnity compensation by reason of a death occurring on or after January 1, 1957, shall be eligible by reason of such death for death pension or compensation under any other law administered by the Department of Veterans Affairs, except that, effective November 2, 1994, a surviving spouse who is receiving dependency and indemnity compensation may elect to receive death pension instead of such compensation.

(Authority: 38 U.S.C. 1317)

(d) Group life insurance. No dependency and indemnity compensation or death compensation shall be paid to any surviving spouse, child or parent based on the death of a commissioned officer of the Public Health Service, the Coast and Geodetic Survey, the Environmental Science Services Administration, or the National Oceanic and Atmospheric Administration occuring on or after May 1, 1957, if any amounts are payable under the Federal Employees' Group Life Insurance Act of 1954 (Pub. L. 598, 83d Cong., as amended) based on the same death.

(Authority: Sec. 501©(2), Pub. L. 881, 84th Cong. (70 Stat. 857), as amended by Sec. 13(u), Pub. L. 85–857; (72 Stat. 1266); Sec. 5, Pub. L. 91–621 (84 Stat. 1863))

[29 FR 10396, July 25, 1964, as amended at 35 FR 18661, Dec. 9, 1970; 37 FR 6676, Apr. 1, 1972; 39 FR 34529, Sept. 26, 1974; 44 FR 22717, Apr. 17, 1979; 58 FR 25561, Apr. 27, 1993; 58 FR 27622, May 10, 1993; 60 FR 18355, Apr. 11, 1995; 70 FR 72220, Dec. 2, 2005]

[jessejames]

IF he was service-connected for Diabetes II and IF the Death Certificate shows death was related to Diabetes II OR if the Death Certificate lists, say, Heart condition and the physician states the "heart condition" was related to Diabetes, you should have no trouble collecting DIC.

http://www.vawatchdog.org/08/fedben%202008.pdf

Dependency and Indemnity Compensation

Eligibility: For a survivor to be eligible for Dependency and Indemnity

Compensation (DIC), the veteran’s death must have resulted from

one of the following causes:1. A disease or injury incurred or aggravated in the line of duty

while on active duty or active duty for training.

2. An injury incurred or aggravated in the line of duty while on

inactive duty training.

3. A service-connected disability or a condition directly related to a

service-connected disability.

DIC also may be paid to survivors of veterans who were totally disabled

from service-connected conditions at the time of death, even

though their service-connected disabilities did not cause their deaths.

The survivor qualifies if the veteran was:

1. Continuously rated totally disabled for a period of 10 years

immediately preceding death.

2. Continuously rated totally disabled from the date of military

discharge and for at least 5 years immediately preceding

death.

3. Or a former POW who died after Sept. 30, 1999, and who was

continuously rated totally disabled for a period of at least one

year immediately preceding death.

Payments will be offset by any amount received from judicial proceedings

brought on by the veteran’s death. The discharge must

have been under conditions other than dishonorable.

Edited March 9, 2008 by jessejames

[free_spirit_etc]

Yes. She should apply for DIC - if his cause of death can be connected to his SC condition(s). That would be her OWN claim - for DIC and / or Pension (a claim for one is a claim for both).

Also - as he had a claim PENDING - the VA closes it - but she can reopen it - by filing for ACCRUED benefits. She has the right to any benefits that would have been paid had his claim been decided during his lifetime. So based on the evidence in the file when he died - they will make a decision - and if it is in the vets favor - then the widow gets the benefits he would have been paid. (so say he filed the claim five months before he died - she gets HIS five month payment)

The vet does not have to be 100% for 10 years IF they die from a SC condition - or from something that can be attributed to a SC condition.

Free

[Berta]

you got great advise here from others-

she must apply for DIC within one year after death to be eligible for any accrued award.

Due to Bonny V Principi the VA will pay her ALL accrued -less anything the vet received in his lifetime-

Survivors of any vet who dies after Dec 16,2003 will get ALL accrued comp less what the vet got already.

Meaning- I just read my accrued award-

they sent 2 years (I fell into the old 2 year rule)

at 100% -less the 2 years Rod got at 30%.

His actual VA award for 3 years at 100% will kick in under Nehmer when they properly resolve my AO death claim.

But the DIC app must be filed within one year after death for any potential accrued benefits to be awarded.

[SSGMike.Ivy]

thanks all will pass this on. In fact will forward her here to read the responses.