100% Disabled Veteran Widow's Benefits Question

[midnight340]

Greetings All,

I have been absent for some time from this site, but have been so grateful for all the assistance helping me get my disability.

My question now has to do with my mother's benefits. She passed away about 10 days ago. My father had been on 100% as a WWII vet, and he died a little over two years ago.

I just found out from my brother that the VA quit paying my mother any benefits at all upon my father's death. So this would have been about 26 months of benefits.

Is there anything I can do about this now that she is gone? We have medical and care bills and if there is any chance to getting the benefits that she should have been paid, it would help my siblings and me a lot.

I am hoping someone can give me some guidance here. Thanks. -Midnight

(edit) I want to add that my father had been receiving 100% disability from the VA for well over 10 years.

Edited February 17, 2014 by midnight340

[JR Reihs]

If the lawyer did in fact send the VA a letter about possible benefits and you can prove that he did, I think this would be a inferred claim and the VA would have an obligation to see this claim through under CUE.......maybe a strech, maybe not........Finding a copy of the letter from the lawyer could turn this around.

[Berta]

There are some DIC decisions at the BVA web site that involve similar situations:

“Turning to the appellant's claim for DIC under 38 U.S.C.A. § 1318, the statute authorizes
 the payment of DIC to a surviving spouse and to the children of a deceased Veteran 
in the same manner as if the Veteran's death were service-connected if-(1) the disability was 
continuously rated totally disabling for a period of 10 or more years immediately preceding death.
  See also 38 C.F.R. § 3.22 (2010).  

Here, there is no question that the Veteran was totally disabled due to schizophrenia for a 
period in excess of 10 years prior to his death.  Entitlement would be granted if the Veteran 
had a surviving spouse or surviving child or children.  Here, the record reveals that the Veteran
 is divorced.  While the appellant is the son of the Veteran, he is no longer a "child" as that term 
is defined.  
he definition of the term "child," as defined for the purposes of establishing dependency status,
 means an unmarried person who is a legitimate child; a child legally adopted before the age 
of 18 years; a stepchild who acquired that status before the age of 18 years 
and who is a member of the Veteran's household at the time of the Veteran's death; 
or an illegitimate child.  In addition, the child must be someone who: (1) is under
 the age of 18 years; (2) before reaching the age of 18 years became permanently incapable
 of self-support; or (3) after reaching the age of 18 years and until completion of education 
or training (but not after reaching the age of 23 years) is pursuing a course of instruction 
at an approved educational institution.  38 U.S.C.A. § 101(4); 38 C.F.R. § 3.57(a).  

Here, according to a birth certificate of record, the appellant was born in 1957, and therefore, does not otherwise meet the definition of a "child." Hence, he is not entitled to benefits under 38 U.S.C.A. § 1318. In addition, the statute makes no allowance for payment of benefits to the estate of the deceased Veteran. Accordingly, entitlement to 38 U.S.C.A. § 1318 benefits is precluded as a matter of law. “

The American Legion represented the adult son who was the appellant.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp11/Files2/1111139.txt

It is possible there could be some burial benefits due the estate but I am not sure.

I dont think there is a time limit for applying for them.

For example,I received minimal burial benefits when my husband died.

Under my first DIC award,under Section 1151, the VA did not pay anything towards the funeral expenses.

Upon receipt of my 2nd or maybe the 3rd DIC award,I finally remembered the SC burial regs and I sent the VA a copy of the award and requested they pay the additional monies that was on my original DIC application.

I had saved and included a copy of the paid funeral bill and the ALS bill.

The VA did pay me the maximum benefit for a SC death. We have info here on burial benefits, accessible under a search.

They paid me about 16 years after he died. Must have been the 2nd DIC claim.No time frame on filing those types of claims.

It sounds like this deceased spouse here could have received DIC as well as A&A in her lifetime and possible other ancillary benefits.

But there might be a funeral expense or burial benefit that could be recovered by the estate.

Edited February 18, 2014 by Berta

[midnight340]

JR Reihs:

I had thought of the letter, and may see if a copy still exists...

Berta:

If I read the above correctly, I am understanding that because I am not any longer a "child," and because there was a failure to apply for benefits while my mother was alive, there is not much chance the estate can do anything about the missed benefits after her death. (other than some possible burial benefits?)

[john999]

Midnight

Did your father die from service connected condition? I think one thing the VSO's and vets should do is to get the ten year time frame for 100% vet's spouse to be able to get DIC reduced. 3 years or maybe even one year would be a better time limit to have to be married for the spouse to get DIC. For example, two mature people of age 65 and 70 find each other and get married. Making the 100% vet spouse wait ten years to get DIC is a hell of a long time for someone 65 years old who may not be in all that great of health. The 70 year old 100% vet has a slim chance of making it to 80 years old. What happens is the elderly spouse is left high and dry with just some SSA and a flag. I know the VA does not want 90 year old 100% vets getting married to an 18 year old Barbie and then kicking off 6 months later leaving 70 years of DIC to be paid out to the young thing. How often does that really happen. My Aunt's husband died in 1939 of SC condition. My Aunt got DIC until she got married again because she was pretty young when she became a widow. The VA punishes thousands of spouses to make sure one spouse does not get over on the system.

John

[midnight340]

John,

I don't think he died as result of SC condition. But then, since he and mom would never talk about it, I have yet to find out what condition he was 100% SC for. I assume it may have been PTSD as he fits the profile well. He got SC late in life due to the efforts of some young person at the Reg. Office.

My brother is trying to locate paperwork to clarify some of these things.

[Berta]

"Berta:

If I read the above correctly, I am understanding that because I am not any longer a "child," and because there was a failure to apply for benefits while my mother was alive, there is not much chance the estate can do anything about the missed benefits after her death. (other than some possible burial benefits?)"

That is correct and that is how I interpret that statement and regulation.

What his SC disability was for, and what the death certificate said the cause of death was , is not an issue here because of the 10 year rule.

If the widow had applied for DIC in her lifetime, from what I see here, she would have received DIC under 38 USC 1318 with no problem.

John said:

. "My Aunt got DIC until she got married again because she was pretty young when she became a widow. "

John, as you know, but it bears repeating,if a surviving spouse remarries after the age of 57, then he/she can retain their DIC, if they are eligible under this regulation here:

I laughed when I read my older post there because I just got that same 'did you marry anyone' letter from the VA.

I would still retain my DIC,if I did, but the VA ,I guess, would want to know of the name change , and any possible address change and would need a copy of the marriage license.

BTW, the VA office of Survivors addy is in that link above.

They can help with many survivor issues but have no jurisdiction over any pending DIC claims.

They might be able to offer you some referral for more info as to estates,and any other burial/funeral benefits , Midnight, but

I am sure they would interpret that regulation as to VA's definition of child' the way I do.