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.
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.
Question
Berta
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.
http://www4.va.gov/vetapp10/files1/1009251.txt
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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