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Survivor Question


stony105

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I am sorry for your niece's loss, and your loss of a brother/brother-in-law.

Dependents Indemnity Compensation (DIC) may be possible. Death pension may also be possible. If you apply, both benefits are considered, although only one can be granted.

The basic requirement is 38 CFR 3.5(a)(1) http://www.benefits..../PART3/S3_5.DOC . Although the child's father was rated 100% disabled, his actual service connected disabilities are key here. The veteran must have died from a service connected condition (or, a service connected condition must have contributed to his death). The cause of death, suicide, is not an absolute bar to DIC if the veteran had a service connected mental condition. So, if a mental disorder was one of his service connected conditions, this may fly. If the veteran had been receiving additional benefits because he had already established that hs daughter was incapable of support before age 18, so much the better.

Here is the VA definition of a "child" http://www.benefits....PART3/S3_57.DOC . It would appear that 38 CFR 3.57(a)(1)(ii) applies here.

Someone, whoever that someone may be, will have to have help the child file a claim for DIC on VA Form 21-534 http://www.vba.va.go...-21-534-ARE.pdf . Mail it or deliver it in person her closest VA Regional Office.

Be prepared to provide medical information on the child's status. Be prepared to have some kind of medical opinion that one of the veteran's service connected disabilities caused or contributed to his demise. If death pension is the issue, be prepared to show the child's income and finances (death pension is income based, and benefits such as Social Security will offset any death pension). Be prepared to wait.

If DIC is granted, be prepared for a proposal to declare her incompetent because she is developmentally delayed.

There's a lot more to this, but this should get you started.

my niece was the daughter of veteran who commited suicide and has been mentally retarded since birth. is she entitled to any kind of survivor benefits. he was 100% sc.thanks for any replies

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If the child has already been established as a helpless child the leg work is 3/4 the way done. If the veteran was 100% for over 10 years. The niece might get it that way without the veteran not dying due to sc condition. Sorry to hear of your and your nieces loss.

Look under 38 USC 1318

http://www.law.cornell.edu/uscode/html/uscode38/usc_sec_38_00001318----000-.html

(1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death;

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good advice here already.

But these claims can be difficult if there is no possible 38 USC 1318 entitlement.(the ten year rule)

I assume there is no surviving spouse in receipt of DIC?

http://www.va.gov/vetapp10/files3/1027928.txt

In this above BVA case, there was potential entitlement under the 10 year rule but the BVA granted under

38 C.F.R. § 3.302(a).

The VA must make a finding ,in all cases regarding a veteran's suicide, as to whether the act of suicide was “ willful misconduct” or due to “mental unsoundness.”

The VA will only compensate “mental unsoundness” due to service connected causes.

In part this decision states:

“No reasonable adequate motive for the Veteran's suicide is shown

by the evidence, and the act will therefore be considered to have

resulted from mental unsoundness. The medical opinion of record

confirmed the Veteran was not of sound mind at the time he

committed suicide and attributed the cause of the Veteran's

suicide to his two psychiatric conditions (depression and

cognitive disorder).”

This case was granted but others do not succeed.

In this case below the veteran was not in receipt of TDIU or 100% SC for a continuous ten year period prior to death and the VA deemed his death as willful misconduct and denied DIC.

http://www.va.gov/vetapp10/files3/1024670.txt

I personally was involved with a potential DIC suicide claim years ago. I knew the veteran very well.

But it ended up where the claim could not even be filed (long story)

and there seemed to be no way at all that the surviving spouse could prove the death was not due to willful misconduct.

The regulations for suicides deaths of veterans have to be very carefully read over any times as many vet reps are not familiar with them.

In some cases a strong independent medical opinion could certainly help.

In other cases, the VA itself could be found at fault for a veteran's suicide.

http://www.va.gov/vetapp10/files3/1024670.txt

“NASHVILLE, Tenn. — The widow of an Iraq war veteran from Tennessee claims in a lawsuit that the Veterans Affairs was negligent in failing to diagnose and treat his post-traumatic stress disorder before he committed suicide in 2008.

The suit filed Tuesday in federal court in Greeneville says staff at the VA hospital in Mountain Home did not adequately treat Scott Walter Eiswert, of Greeneville, before his suicide at the age of 31. Eiswert, who served with the Tennessee National Guard, deployed to Iraq in 2004 and 2005.”

and:

“His benefit claims were denied a total of three times by the VA prior to his death, according to the lawsuit. The hospital gave him medications for depression and insomnia, but he did not tolerate them well, according to the lawsuit. “

and

“After his death, the VA reversed its decision and found that Eiswert was entitled to a service-connected disability for PTSD. Two psychiatric experts analyzed Eiswert’s medical records and concluded that the VA was derelict in their duty to diagnose him with PTSD and gave him substandard medical care. “

There are many factors one needs to consider in claims regarding DIC and suicides.

Also every piece of medical evidence must be carefully considered to include medication records.It is always possible that a veteran would suffer suicidal ideation,even to the point of acting on it, solely due to a side affect from a VA prescribed medication,that VA did not monitor properly.

With a very strong independent medical opinion, a claim like that could succeed for DIC under Section 1151,38 USC.

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