Dic Overview

[Berta]

The DIC regulations sometimes get lost in the shuffle:

http://benefits.va.gov/compensation/types-dependency_and_indemnity.asp

"Eligibility (Surviving Spouse)

To qualify for DIC, a surviving spouse must meet the requirements below.

The surviving spouse was:

Married to a Servicemember who died on active duty, active duty for training, or inactive duty training, OR
Validly married the Veteran before January 1, 1957, OR
Married the Veteran within 15 years of discharge from the period of military service in which the disease or injury that caused the Veteran's death began or was aggravated, OR
Was married to the Veteran for at least one year, OR
Had a child with the Veteran, AND
Cohabited with the Veteran continuously until the Veteran's death or, if separated, was not at fault for the separation, AND
Is not currently remarried

Note: A surviving spouse who remarries on or after December 16, 2003, and on or after attaining age 57, is entitled to continue to receive DIC.
Eligibility (Surviving Child)

Not included on the surviving spouse's DIC, AND
Unmarried, AND
Under age 18, or between the ages of 18 and 23 and attending school."

"Evidence Required

Listed below are the evidence requirements for this benefit:

The Servicemember died while on active duty, active duty for training, or inactive duty training, OR
The Veteran died from an injury or disease deemed to be related to military service, OR
The Veteran died from a non service-related injury or disease, but 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://benefits.va.gov/compensation/types-dependency_and_indemnity.asp


They forgot to mention Section 1151, 38 USC DIC on this VA web page.

Here it is:

http://helpdesk.vetsfirst.org/index.php?pg=kb.printer.friendly&id=80#c419

"4. Section 1151 Benefits - Injured by VA Care or Medical Treatment
4.1. Section 1151 Benefits

Pursuant to 38 U.S.C. section 1151, claimants who were injured by VA care or medical treatment may be entitled to compensation. Jackson v. Nicholson, 433 F.3d 822, 824 (Fed. Cir. 2005). Section 1151 provides that compensation shall be awarded for an additional disability or death "in the same manner as if such additional disability or death were service-connected." The additional disability or death is qualifying if:

not the result of the veteran's willful misconduct and:
the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary . . . and
the proximate cause of the disability or death was –

- carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or

- an event not reasonably foreseeable or

- the provision of training and rehabilitation services or participation in a compensated work therapy program.

38 U.S.C. § 1151(a). To be entitled to VA benefits, any additional disability must not be merely coincidental with VA medical treatment, but must stem from some fault in the care that was provided, including "carelessness, negligence, lack of proper skill, error in judgment, or some other similar instance of fault." 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(d)(1); Loving v. Nicholson, 19 Vet. App. 96, 100 (2005). Section 1151 does compensate for issues arising from care provided on a fee basis or by non-VA physicians working at VA facilities. 38 C.F.R. § 3.361(f).

To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (2) VA furnished the care, treatment, or examination without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the disability. The event does not have to be "completely unforeseeable or unimaginable" but it must "be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided." 38 C.F.R. § 3.361(d)(1).

"To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the . . . medical or surgical treatment . . . upon which the claim is based to the veterans condition after such . . . treatment." 38 C.F.R. § 3.361(b). An additional disability is actually caused by VA care, treatment, or examination when the VA care, treatment or examination "resulted" in the additional disability. 38 C.F.R. § 3.361©(1). If an additional disability is caused by a veteran's failure to properly follow medical instructions, such a disability will not be considered to be caused by VA hospital care or medical treatment. 38 C.F.R. § 3.361©(3).

A Board determination regarding entitlement to compensation under section 1151 is a factual finding that this Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); Look v. Derwinski, 2 Vet. App. 157, 161-62 (1992). "

http://helpdesk.vetsfirst.org/index.php?pg=kb.printer.friendly&id=80#c419

This type of claim almost ALWAYS needs an IMO.

[Berta]

Just to add, this is a fairly recent 1151 DIC award at the BVA:

In part:
"As noted, the Board finds that the appellant's assertions that she called the VA medical center following her husband's complaints of chest pain credible. Supporting this finding is the autopsy report which notes a phone call made to the Tampa VA medical center. Assuming then, that the Veteran's wife's assertions are credible and that she was in fact instructed that the Veteran probably had pain in his chest secondary to his intubation tube and that he should take pain killers, the Board finds that the VA medical center failed to recognize the signs and symptoms of an acute myocardial infarction and therefore failed to properly instruct the Veteran's wife to report to the emergency room. "

"The fact that three medical professional all suggest that, if the phone call occurred, and the Board has found this assertion credible, it was unreasonable to suggest as the VA did, that the Veteran stay at home and take pain medication for his chest pain and related symptoms. Given the evidence described above, the appellant's claim for entitlement to dependency and indemnity compensation pursuant to 38 U.S.C.A. § 1151 is granted."

ORDER

Entitlement to service connection for the cause of the Veteran's death is denied.

Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C.A. § 1151 due to VA medical treatment is granted.

http://www.va.gov/vetapp12/Files3/1221709.txt

(I don't see mention of an IMO here regarding the 1151 issue . Obviously this was a clear cut case of negligence.)

"direct" SC death was denied.

"As if SC "death under 1151 was awarded.

[Buck52]

Thank you Ms Berta

We will pass this good information to our friend.

[free_spirit_etc]

I am throwing this out there without having all the information to post, in case someone is reading this who is still within the time frame. I had a bunch of information pulled up and then had to reboot my computer.

I have been puzzled about the disabled veteran's life insurance. How do you apply if you die before SC is granted? It would seem like once SC is granted, the widow would be able to file, under the provisions where you can be deemed to have applied as of the date of death. But in researching this it looks like -- even if you couldn't apply because you weren't SCed yet, there still needs to be a showing that you were at some point not competent for 38 U.S. Code § 1922 (b) to apply. http://www.law.cornell.edu/uscode/text/38/1922

It seems like that provision can be met even with a doctor's statement that immediately prior to your death you were not capable of managing your affairs because of the illness or medication.

BUT -- what I am also running across is that it looks like the widow has to apply within two years after your death, even if SC has not been granted for the condition / death yet. They don't seem to have any provision to file after SC has been granted, if it was granted more than 2 years after the veteran's death. The VA is also not obligated to tell the widow she may be eligible.

So what I am finding is that if the veteran does not have the insurance, and dies before receiving SC for the condition, the widow needs to file a claim within two years, even if SC has not been granted yet.

I read a BVA case where a widow appealed a Gratuitous Service-Disabled Veterans Insurance claim, and the BVA stated it was inextricably intertwined with the accrued benefits claim and remanded it until the accrued benefits claim was adjudicated. http://www.va.gov/vetapp10/Files4/1039840.txt

So I think I missed this one. I didn't realize I could apply until Service Connection was granted. Unfortunately, it took the VA almost 8 years to grant that. So I am not seeing where I can meet the two year deadline.

If this is true, we need to add filing for Gratuitous Service-Disabled Veterans Insurance (S-DVI) (ARH) within two years of the veteran's death, regardless of whether SC has been granted yet, to the list of thing widows might need to do.

http://www.benefits.gov/benefits/benefit-details/4757

[free_spirit_etc]

Okay -- Here is the case I saw that gives more information about it. In this case, the widow lost the appeal in getting the supplemental insurance, but she was granted the initial policy. The veteran didn't apply during his lifetime, as they didn't receive the decision on his pancreatic cancer until a couple days after he died. The decision was made before he died though.

What seems odd about this case is that it says that the veteran's doctor wrote a letter to the VA about his pancreatic cancer, and the next day they granted him 100% for the cancer. The next day? It doesn't seem like any RO I know.

Anyway -- as far as the law on the life insurance, the case states: "The Court holds that in accordance with the plain language of the statute, the

grant of insurance under 38 U.S.C. § 1922(b) is treated, by operation of law, as an award under 38 U.S.C. § 1922(a)."

And this looks like the factor that met the standard of not competent: On February 22, 2006, the veteran died from his pancreatic cancer. R. at 53. According to

the appellant, she did not receive the rating decision in the mail until "four or five days" after the veteran's death. R. at 19. A triage nurse at the veteran's hospice later explained that the veteran was "unable to conduct his daily affairs in the last few days of his life due to high doses of medication." R. at 96."

And it goes on to state: "In March 2006, the RO sent the appellant a letter explaining that they were unable to accept her application for S-DVI because it had to be "signed by the veteran and received by the VA Insurance Service before the veteran's death." R. at 315. In April 2006, the RO determined that the veteran's cause of death was service connected. R. at 112-15. On June 30, 2006, the RO awarded the appellant gratuitous S-DVI under 38 U.S.C. § 1922(b).2 R. at 92-95. In its decision, the RO found that the veteran had been mentally incompetent at death as a result of his service-connected disability and that this prevented him from applying for S-DVI. Id."

I don't know if it matters in the case that the SC was granted during the veteran's lifetime. But it does seem to take SC granted after death in account:

The law 38 U.S.C. § 1922(b) specifically states:

"(b)

(1) Any person who, on or after April 25, 1951, was otherwise qualified for insurance under the provisions of section 620 of the National Service Life Insurance Act of 1940, or under subsection (a) of this section, but who did not apply for such insurance and who is shown by evidence satisfactory to the Secretary

(A) to have been mentally incompetent from a service-connected disability,

(i) at the time of release from active service, or

(ii) during any part of the two-year period from the date the service connection of a disability is first determined by the Secretary, or

(iii) after release from active service but is not rated service-connected disabled by the Secretary until after death; and

(B) to have remained continuously so mentally incompetent until date of death; and

© to have died before the appointment of a guardian, or within two years after the appointment of a guardian; shall be deemed to have applied for and to have been granted such insurance, as of the date of death, in an amount which, together with any other United States Government or National Service life insurance in force, shall aggregate $10,000. The date to be used for determining whether such person was insurable according to the standards of good health established by the Secretary, except for the service-connected disability, shall be the date of release from active service or the date the person became mentally incompetent, whichever is the later.

But 3 states:

(3) "No application for insurance payments under this subsection shall be valid unless filed with the Secretary within two years after the date of death of the insured" or before January 1, 1961, whichever is the later, and the relationship of the applicant shall be proved as of the date of death of the insured by evidence satisfactory to the Secretary. Persons shown by evidence satisfactory to the Secretary to have been mentally or legally incompetent at the time the right to apply for death benefits expires, may make such application at any time within one year after the removal of such disability.

So there is a provision that someone who is mentally incompetent can have additional time -- up to one year after the disability it removed. But otherwise, it looks like there is a two year limit.

But then, this footnote in the case http://www.veteranslawlibrary.com/files/CAVC_cases/2014/Martin_11-3814.pdfstates

"See http://benefits.va.gov/insurance/s-dvi.asp(last visited Feb. 11, 2014).

1922(b) provides that "[a]ny person who . . . was otherwise qualified for insurance under . . .

subsection (a) of this section," but who is found to have been mentally incompetent from a serviceconnected

disability at the time of his or her death, "shall be deemed to have applied for and to have

been granted such insurance, as of the date of death." (which I also underlined in the regulations).

So that is a bit puzzling. If they are deemed to have applied and been granted benefits, does that meet the two year requirement? I am not sure because #3 is talking about applying for insurance payments.

I apologize if I am entering confusing information in the thread that is supposed to be giving survivors an overview of what to do. I can edit the posts if I am muddying up the thread. But I am trying to get clear on this issue, and also think it is an issue that might effect other widows / widowers.

Edited January 31, 2015 by free_spirit_etc

[free_spirit_etc]

I am not seeing any way around this two year requirement. So I guess the thing to do is that if the veteran had a claim for SC pending at the time of his / her death, it would be best to go ahead and apply for the insurance within the two year time frame, even if SC hasn't been granted yet.

It is ironic that it looks like you still must show the veteran was incompetent at some point before their death - as a reason they didn't apply. They didn't apply because they did not have SC yet.

It isn't easy to find out a lot of information about this. I guess it is a well kept secret.

http://www.benefits.va.gov/INSURANCE/docs/2014_VALifeBook.pdf

Application For Gratuitous S-DVI Benefits

VA must receive an application for payment of Gratuitous S-DVI within two years from the date of the Veteran’s death. However, if the person making the claim is mentally or legally incompetent at the time the right to apply for Gratuitous S-DVI expires, they may apply within one year after their incompetency ends.

Payment Of Gratuitous S-DVI

Gratuitous S-DVI is granted in an amount that, together with any other United States Government Life Insurance or National Service Life Insurance in force, totals $10,000. Gratuitous S-DVI is payable to the beneficiary only as a lump sum payment.

[free_spirit_etc]

This is nice. The VA can now pay funeral / burial benefits without having to send in all the receipts.

When you think of the time the VA wasted in losing my burial claim several times, and then making me appeal to get paid for burial, as well as funeral expenses (which at that time was $300 each) because they said there was no evidence I buried my husband, this is a welcome change.

http://benefits.va.gov/compensation/claims-special-burial.asp

Burial Benefits

Effective July 7, 2014: VA is changing its monetary burial benefits regulations to simplify the program and pay eligible survivors more quickly and efficiently. These regulations will authorize VA to pay, without a written application, most eligible surviving spouses basic monetary burial benefits at the maximum amount authorized in law through automated systems rather than reimbursing them for actual costs incurred.

• Under the current regulations, VA pays for burial and funeral expenses on a reimbursement basis, which requires survivors to submit receipts for relatively small one-time payments that VA generally pays at the maximum amount permitted by law.
• The new burial regulations will permit VA to pay, at a flat rate, burial and plot or interment allowances thereby enabling VA to automate payment of burial benefits to most eligible surviving spouses and more efficiently process other burial benefit claims.
• The burial allowance for a non-service-connected death is $300, and $2,000 for a death connected to military service.