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Dic 1318 Changes

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The 38 USC 1318 regs for DIC changed quite some time ago and I was unable to find the topic here-didn't have time to read all the posts-I mentioned this in the Claims Research forum so felt best to post the info again.

This BVA case explains the change.


These types of DIC claims are very difficult to succeed in.

In part the decision above explains the new regs thus:

Previously, under the hypothetical entitlement approach, for

claims for DIC benefits filed before January 21, 2000, if the

survivor of a deceased Veteran could prove that a Veteran

would have been entitled to receive compensation for a 100

percent disabling service-connected disability for ten years

prior to death, then the survivor could claim DIC benefits

under 38 U.S.C.A. § 1318, even though the deceased Veteran

did not actually receive such compensation. Green v. Brown,

10 Vet. App. 111 (1997); Carpenter v. West, 11 Vet. App. 140

(1998); Wingo v. West, 11 Vet. App. 307 (1998); Cole v. West,

13 Vet. App. 268 (1999). However, effective January 21,

2000, the regulations were changed to preclude survivors of

Veterans from bringing claims for DIC benefits using a

hypothetical entitlement approach for claims pending as of

January 21, 2000. 38 C.F.R. § 3.22; Rodriguez v. Nicholson,

19 Vet. App. 275 (2005); 65 Fed. Reg. 3,388 (Jan. 21, 2000).

Subsequently, applying the three-part test outlined in

Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir.

2005), the United States Court of Appeals for the Federal

Circuit (Federal Circuit) held that the new version of 38

C.F.R. § 3.22, barring the use of the hypothetical

entitlement theory, does not have an impermissible

retroactive effect and may be applied to bar claims for DIC

benefits filed by survivors prior to January 21, 2000.

Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). The

Federal Circuit found that the application of the amended

38 C.F.R. § 3.22 did not create an unlawful retroactive

effect because it did not retrospectively diminish any rights

to benefits. Notably however, the claimant in the Rodriguez

case had filed her DIC claim before the decision in Green v.

Brown, 10 Vet. App. 111 (1997) was issued (before February

1997). The decision left open the question of whether

hypothetical entitlement was available to an appellant who

filed her claim after February 1997, but prior to the

regulatory change in January 2000.

However, in response to that question, the Federal Circuit

most recently held that that the regulatory changes

eliminating the hypothetical entitlement theory of DIC, as

discussed in Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir.

2008), are retroactive even where an appellant filed her

claim after February 1997. Tarver v. Shinseki, 557 F.3d 1371

(Fed. Cir. 2009). In essence, under the holdings of

Rodriguez and Tarver, the amended regulation 38 C.F.R. § 3.22

does not have an impermissible retroactive effect, and may be

applied in order to bar DIC claims filed by survivors under

the hypothetical entitlement theory, no matter when the claim

was filed. Thus, there is no longer a theory of hypothetical

entitlement to DIC benefits.

The Veteran in this case died on August [redacted], 2007. The cause

of death was listed as cerebrovascular accident. Chronic

obstructive pulmonary disease was listed as a significant

factor contributing to his death. At the time of his death,

the Veteran was in receipt of a 100 percent disability rating

for a psychiatric condition, to include schizoaffective

disorder claimed as posttraumatic stress disorder (PTSD) and

a nervous condition, effective January 16, 2002, the date of

receipt of his claim for benefits. He had no other service-

connected disabilities. Furthermore, there is no indication

or allegation that he was a former POW. He was not in actual

receipt of compensation for a service-connected disability

rated as totally disabling by VA for any of the required

periods of time. 38 C.F.R. § 3.22(a).

In her claim for dependency and indemnity compensation (DIC)

under 38 U.S.C.A. § 1318, the appellant contends that the

Veteran should have been in receipt of total 100 percent

disability compensation due to service-connected psychiatric

disability for at least 10 years prior to his death in August

2007. That claim is, in essence, a claim of hypo” etc.....


The VA now requires that the survivor prove a CUE was committed by VA in a past denial that would have subsequently awarded DIC under the 10 year rule (with a posthumous grant of 100% P & T) but for the CUE.

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