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Berta

Overview On Dic For Survivors

Question

An Overview on DIC for Survivors of Veterans

The death of a veteran spouse often brings more unique situations to the surviving spouse then a non veteran's death. Both types of deaths are as equally devastating and there is a lot to do in spite of dealing with the grief.

Many veterans here have already established a Death file . We have done SVR shows on this and there is discussion here at hadit as well on that. http://www.svr-radio.com/archives.html (May 5th and May 12th , 2010)

This file is a good place for copies of the DD 214/215, info on SGLI Life Insurance and other insurance policies, passwords the veteran uses that the spouse might need for paying online bills, and certainly for their hadit password, after they expire.

Also the Marriage license, birth certificates of the children, any divorce decree papers etc etc, VA award letters and SSA award letters, all should be in this special file .Many vets here already have the blank 21-534 form in their death files.

I have a large death file that contains my bank info, insurance policies, my will and Health Care proxy, passwords and even photos of where my septic tank lid is, where the well is, and how to turn the main power to the house and the barn off and on, photos of how the TV, and component cables are attached, and even a photo of how I set up my garden hoses to the main water line. As a widow, it also contains my VA Deed to the same plot at the VA Cemetery where my husband is buried. Also my file contains my signed statement that I am an Organ Donor. An advocate friend of mine has literally written a book for his wife when he dies, along with the important documents I mentioned above. Sometimes our spouses really don't know how to shut off water mains right away if a pipe breaks or how to change a blown fuse.The deed to the home should be in the death file too as it is one of many documents a survivor has to get changed,when their spouse has died.

If your spouse is an organ donor or has mentioned that in their wishes, if not formally recorded by their PCP or on their driver's license,or in their death file , the Organ Harvest people make that call within hours of death and the survivor needs to be prepared for it. Organ harvests involve an autopsy and this autopsy could end up being the most important evidence a survivor can have, regarding many DIC claims, as it will be far more detailed than the death certificate. Of course an autopsy almost always involves cremation.These are things we all need to consider in our lifetimes. And burial in a National Cemetery,for the surviving spouse, eventually ,means they need to know that if the deceased veteran has been cremated and rests in the Cremains section of the cemetery, then the spouse will need to be cremated too, to fit on top of the veteran's grave.

Also the VA as well as SSA (if the veteran receives SSA or SSDI, )should be informed ASAP of the veteran's death.

Often the coroner will ask the surviving spouse for any conditions that that veteran had in their lifetime that the coroner can not list as the immediate cause of death. If a service connected disability has contributed substantially to death, that should be put onto the death certificate by the coroner.Also the coroner will ask what medications the veteran was prescribed. A list of them should be put in the death file and updated as needed.

Death certificates are usually ten dollars each or maybe a little more. You might need more then you think.Also the Probate Court in your county can help with the various forms needed eventually for Probate and this is often a job you can do yourself,if the veteran died intestate (without a will).

When a Funeral Director is contacted , he/she will need the veteran's DD214, and any 215 if one was issued, and since they often prepare the Obit, you will want to think about what it should contain. I wrote my husband's Obituary myself.The funeral director checked it against his 214 and 215 and had it published verbatim.

If your spouse is being buried in a National Cemetery, make sure the Funeral Director and the VA knows of your wishes for a Military funeral:

http://www.cem.va.gov/military_funeral_honors.asp

http://www.cem.va.gov/burial_benefits/

The link to burial benefits does not include this information for surviving spouses of deceased service connected veterans as to burial expense and plot allowances here:

http://www.benefits.va.gov/BENEFITS/factsheets/burials/Burial.pdf

DIC: Dependents and Indemnity Compensation

The DIC application VA form 21-534 is here:

http://www.vba.va.gov/pubs/forms/vba-21-534-are.pdf

Although the form mentions if the veteran had ever filed a claim with the VA before,I suggest to note under Remarks, if there was a claim pending at time of death and the survivor should also fill out, sign, copy and attach (and refer to under Remarks) the Substitution form:

It is explained here:

You need to file the 534 and the Substitution form within one year after the veteran's death for any potential accrued benefits to be paid to you.

The EZ 534 is here:

http://www.veteransaidbenefit.org/forms/21-534EZ.pdf

An Accrued benefits claim must be supported with evidence as well as the DIC claim and they are handled as two separate issues with the VA.

Also I noticed that VA does not include the REPS application anymore along with the DIC app.

REPS Restored Entitlement Program.

My vet reps didnt even know what REPS was at all.

It can involve a considerable amount of money.

Here is the form that states which specific survivors are eligible for REPS:

http://www.vba.va.gov/pubs/forms/VBA-21-8924-ARE.pdf

After receipt of a DIC application the survivor will receive a VCAA letter that must include the Hupp decision.

As Military.com states:

"DIC is a monthly benefit paid to eligible survivors of the following:

  • Military service member who died while on active duty, OR

  • Veteran whose death resulted from a service-related injury or disease, OR

  • Veteran whose death resulted from a non service-related injury or disease, and who was receiving, or was entitled to receive, VA Compensation for service-connected disability that was rated as totally disabling

    • for at least 10 years immediately before death, OR

    • since the veteran's release from active duty and for at least five years immediately preceding death, OR

    • for at least one year before death if the veteran was a former prisoner of war who died after September 30, 1999. “


http://www.military.com/benefits/survivor-benefits/dependency-and-indemnity-compensation.html

DIC is also paid under a Section 1151 death, as explained below,with a more detailed description of each type of DIC here:

1.. Cause of Death

“In order to establish service connection for the cause of a 
veteran's death, the evidence must show that a disability 
incurred in or aggravated by active service was the principal or 
contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. 
§ 3.312(a).  In order to constitute the principal cause of death 
the service-connected disability must be one of the immediate or 
underlying causes of death or be etiologically related to the 
cause of death.  38 C.F.R. § 3.312(b).  In the case of 
contributory cause of death, it must be shown that a service-
connected disability contributed substantially or materially to 
cause death.  38 C.F.R. § 3.312(c)(1).

Service connection for the cause of a veteran's death may be 
demonstrated by showing that the veteran's death was caused by a 
disability for which service connection had been established at 
the time of death or for which service connection should have 
been established.  Service connection means that the facts, shown 
by evidence, establish that a particular injury or disease 
resulting in disability was incurred in the line of duty in the 
active military service or, if pre-existing such service, was 
aggravated during service.  See 38 U.S.C.A. §§ 1110, 1131; 38 
C.F.R. § 3.303(a).

Service connection generally requires evidence of a current 
disability with a relationship or connection to an injury or 
disease or some other manifestation of the disability during 
service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); 
Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing 
Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  Where the 
determinative issue involves medical causation or a medical 
diagnosis, there must be competent evidence to the effect that 
the claim is plausible.  Lay evidence can be competent and 
sufficient to establish a diagnosis of a condition when (1) a 
layperson is competent to identify the medical condition, (2) the 
layperson is reporting a contemporaneous medical diagnosis, or 
(3) lay testimony describing symptoms at the time supports a 
later diagnosis by a medical professional.  Jandreau v. 
Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).” 
This means that either a primary cause of death is listed on the death certificate, as cause of death,
 or that a service connected condition is listed as a contributing cause of death.
http://www.va.gov/vetapp10/files4/1039644.txt
For example, a death certificate of a non - AO vet lists NSC heart disease as prime cause of death 
but with  diabetes as a substantially contributing cause. If the diabetes has been service connected,
 the survivor should succeed with the DIC claim, although it might take an IMO if the veteran had not 
pursued the heart disease as secondary to the diabetes.


DIC Under 38 USC 1318:
Governing Laws and Regulations for 38 U.S.C.A. § 1318 Claim:

“Under 38 U.S.C.A. § 1318, VA death benefits may be paid to a deceased Veteran's surviving spouse or 
children in the same manner as if the Veteran's death is service-connected, even though the Veteran 
died of non-service-connected causes, if the Veteran's death was not the result of his or her own 
willful misconduct and at the time of death, the Veteran was receiving, or was "entitled to receive,"
 compensation for service-connected disability that (1) was continuously rated as totally disabling 
for the 10 years immediately preceding death, (2) was continuously rated as totally disabling for a
 period of not less than 5 years from the date of his discharge or release from active duty or (3) 
was continuously rated as totally disabling for a period of not less than one year immediately
 preceding death, and the Veteran was a former prisoner of war (POW) who died after September 30, 1999. 
 38 U.S.C.A. § 1318 (West 2002 & Supp. 2012); 38 C.F.R. § 3.22(a) (2012).  The total rating may be
 schedular or may be a total disability rating based on unemployability (TDIU).”  38 C.F.R. § 3.22(c).  

“The term "entitled to receive" means that, at the time of death, the Veteran had filed a claim for
 disability compensation during his lifetime, and the Veteran had service-connected disability rated 
totally disabling by VA for the requisite time period, but was not receiving compensation due to six 
possible circumstances: (1) VA was paying the compensation to the Veteran's dependents; (2) VA was 
withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the 
Veteran; (3) the Veteran had not waived retired or retirement pay in order to receive compensation; 
(4) VA was withholding payments under the provisions of 10 U.S.C. § 1174(h)(2); (5) VA was withholding
 payments because the Veteran's whereabouts was unknown, but the Veteran was otherwise entitled to 
continued payments based on a total service-connected disability rating; or (6) VA was withholding
 payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309.”  
38 C.F.R. § 3.22(b)(3).  
In addition, the term "entitled to receive" can mean that the Veteran filed a claim for disability 
compensation during his lifetime and one of the following two circumstances is met: (1) the Veteran 
would have received total disability compensation at the time of death for a service-connected 
disability rated totally disabling for the period specified in paragraph (a)(2) of this section but 
for clear and unmistakable error (CUE) committed by VA in a decision on a claim filed during the 
Veteran's lifetime concerning the issues of service connection, disability evaluation, or effective
 date; or (2) additional evidence submitted to VA before or after the Veteran's death, consisting 
solely of service department records that existed at the time of a prior VA decision but were not 
previously considered by VA, provides a basis for reopening a claim finally decided during the Veteran's
 lifetime and for awarding a total service-connected disability rating retroactively in accordance with
 §§ 3.156(c) and 3.400(q)(2) of this part for the relevant period specified in paragraph (a)(2) of this
 section.  38 C.F.R. § 3.22(b)(1) and (2).    

The Federal Circuit has ruled that § 1318 DIC claims are not subject to a "hypothetical entitlement" 
analysis.  Rodriguez v. Peake, 511 F.3d 1147, 1156 (2008).  See also Tarver v. Shinseki, 557 F.3d 1371,
 1377 (Fed. Cir. 2009).  In essence, under Rodriguez and Tarver, the amended regulation 38 C.F.R. § 3.22 does not have an impermissible retroactive effect, and it may be applied to bar DIC claims filed by survivors under the "hypothetical entitlement" theory, no matter when the § 1318 claim was filed.  Simply put, there is no longer "hypothetical entitlement" to DIC benefits under any circumstance.    

Therefore, the state of the law is such that claims for DIC benefits under 38 U.S.C.A. § 1318 

must be adjudicated with specific regard given to decisions made during the Veteran's lifetime and 

without consideration of hypothetical entitlement for benefits raised for the first time after a Veteran's death.  See again Rodriguez v. Peake, 511 F.3d 1147 (2008).
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files3/1327019.txt

DIC payable under Section 1151,38 USC:

Title 38 U.S.C. 1151 Claims

“Title 38 U.S.C. Section 1151 allows VA to pay compensation for death or disability "as if service-connected." Don't be confused with this subtle difference. The disability is not considered service-connected. Under Section 1151, benefits may be paid for:

  • Injuries incurred or aggravated while receiving VA-sponsored medical treatment.

  • Injuries incurred or aggravated while pursuing a course of vocational rehabilitation under 38 U.S.C. Chapter 31 or participating in compensated work therapy under 38 U.S.C. 1718.

If eligibility is established under Section 1151, the disability is considered service-connected for payment purposes ONLY.

Eligibility Requirements

  • You must be a Veteran

  • You must have a disabling condition that is the result of or has been aggravated due to VA sponsored medical treatment or training

Evidence Requirements

As a result of VA hospitalization, medical or surgical treatment, examination, or training, the evidence must show you have:

  • An additional disability or disabilities, OR

  • An aggravation of an existing injury or disease, AND

The disability was:

  • The direct result of VA fault such as carelessness, negligence, lack of proper skill, or error in judgment, OR

  • Not a reasonably expected result or complication of the VA care or treatment OR

  • The direct result of participation in a VA Vocational Rehabilitation and Employment or compensated work therapy program. “

http://www.benefits.va.gov/COMPENSATION/claims-special-1151.asp
In the case of a surviving spouse, it should clearly be indicated on the 21-534 form that this is a claim for death of the veteran due to negligence, under Section 38 USC, 1151.

This type of claim for VA negligence as the cause of the veteran's death will need probative medical documentation ,almost always in the form of a strong IMO, to support this type of DIC claim ,in order to provide a full medical rationale.
FTCA claims can be filed simultaneously with claims under 1151 for DIC, but any favorable FTCA award will be offset to the DIC compensation payable, until the settlement amount from FTCA is recovered by the VA.
DIC monthly amounts include that which is for any children under 18.
Also there is more info on that here:
http://www.benefits.va.gov/compensation/resources_comp03.asp
In some cases parents of deceased veterans are eligible for DIC and that info is here:
http://benefits.va.gov/BENEFITS/factsheets/survivors/parentsdic.pdf
Eligibility Requirements; what is a surviving spouse for VA purposes:
A surviving spouse may qualify for pension, compensation or dependency and dependency and indemnity compensation (DIC), if the marriage to the Veteran occurred before or during his service, or after his service if certain requirements are met. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.54. Under the regulations, a "surviving spouse" is defined, in part, as a person of the opposite sex whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the Veteran at the time of the Veteran's death. 38 C.F.R. § 3.50.

VA defines a "marriage" as a marriage valid under the law of the place where the parties resided at the time of marriage or the laws of the place where the parties resided when the right to benefits accrued. 38 U.S.C.A. § 103©; 38 C.F.R. § 3.1(j).

In jurisdictions where marriages other than by ceremony are recognized, marriage is established by the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived. Marriage may also be established by any other secondary evidence which reasonably supports a belief by the adjudicating activity that a valid marriage actually occurred. 38 C.F.R. § 3.205(a).

In the absence of conflicting information, proof of marriage which meets the requirements of paragraph (a) of this section together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage may be accepted as establishing a valid marriage, provided that such facts, if they were to be corroborated by record evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(b)

A surviving spouse should always try to find a good vet rep to help with the DIC claim.

Regardless of what the rep says they have sent in to the VA, the survivor should keep copies of everything , to include their filled out DIC form, and double check that VA has received everything they send.

VA will not allow us survivors to use ebenefits but the ebenefit section ( # 5 I think on the phone pad), after you call 1-800-827-1000 will give you a status from a VA rep if you can hold on the line for a while.

Office of Survivors Assistance VA...http://www.va.gov/survivors/
This office is an excellent resources for survivors who have questions that do not regard their DIC claims. For example there is info at this site on bereavment counselling available to survivors through the VA.They have a direct email addy as well at the site.
Hadit has had superb discussions here in our DIC forum as to all of the nuances of the DIC benefit and advice to many, as each DIC claim can be either a very simple one or can be actually quite complex.
Also Tbird has put an entire Survivors packet here:
http://www.hadit.com/veterans_dependent_survivor_package/veterans_dependent_survivor_package.html
Surviving spouses of veterans, even if they had been very involved in the spouse's VA issues, find there is a lot to the DIC process and will also learn that our motto here, Knowledge is Power, is what can sustain them and that knowledge can hopefully reverse any DIC denial they might get.
If the survivor is age 60 or older, (age 50 if disabled)they can consider receiving an early SSA survivors benefit:
http://www.ssa.gov/survivorplan/ifyou2.htm

I only wish that some of the above information was available to me long ago when I was widowed of a veteran. Grief can stop us in our tracks and even cause us to put off filling out the many forms and sundry paperwork that the death of a spouse involves. I even had many flashbacks as I prepared this article,because ,when I was newly widowed , I was dealing with a pre -internet VA, whose web site holds a wealth of info now, yet I did have the VBM by NVLSP and that gave me good direction for my initial DIC claim.
Also I advise to file for SC death under more than one theory if possible.
If one theory fails, than perhaps the next one will succeed.
That is good advice for any veteran claimant as well, to raise as many logical theories of entitlement ,as possible, to gain service connection.

Meghp0405 has added this important advice:

“Submit a VA FM 21-534ez for DIC claims. I've also submitted this form along with a VA FM 21-526ez, FDC. The response times that I've experienced using this process is around 90 days..

The DIC claims have been directed to the Milwaukee VARO. I've always submitted the applications right to that office instead of the local VARO. Saves some time..

hope this helps”






Edited by Berta
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Thank you sooooo much for posting this. It is very important, yet something too many of us put off for a "rainy day" to do. I started working on this, got sidetracked, and need to complete it yesterday!

Don't want my loved ones to have to search for documents, etc. after I've gone to the "Rainbow Bridge!"

LC

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Folks I am bumping this up, because it will give you all a chance to learn these regulations now, before you expire, and the spouses needs to know them too.

You can copy this whole article and put the copy in your VA files with your DD 214 etc etc.

If your spouse does not use the internet, he or she will have to depend on a VSO or vet rep, who might not have a clue on DIC and accrued. My former reps didnt.

Make sure the spouse has your hadit password or will register here  in their name when you die.

I usually always answer DIC questions here, but from now on I will give all of you a chance to help any survivor who comes to us. You will find all the info they need in this article and expanded on in our DIC forum.

 

 

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I wrote this in 2014, aqnd as I re read it 

there are some corrections.

 

Yes ,we survivors have been granted the right to use ebenefits now.

Also DOMA insures some same sex spouses these same rights for DIC:

http://www.va.gov/opa/pressrel/pressrelease.cfm?id=2562

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