DIC ADDITIONAL ALLOWANCE

[sammy]

Hi all,

I am trying to help a widow who collects DIC already but in speaking with her it seems that she should be getting  the additional allowance as her husband was rated Permanent and Total more than 8 years.

She only receives $1254 but can someone tell me what she needs to do to get the additional $266.

Thank you

 

 

[Berta]

Enhanced DIC regulations changed in 2005.

There is not enough info here to really respond to your post.

The date of the DIC award, and their Reason and Bases and Evidence list, would hold the key to why this widow does not get enhanced DIC and their reason could be legally wrong, therefore a CUE is possible as noted in this decision.

But there are many nuances to this type of claim. The regs below are only a brief excerpt. 38 USC 1311 et al can be googled.

 

Can she join us here?

There is no longer any 'hypothetical entitlement" concept available for enhanced DIC.

 

 

 

 

"To the extent that the appellant alleges that the Veteran should have been rated as totally disabled due to a cardiac disability for eight or more years, VA has established that "hypothetical entitlement" is not a viable basis for establishing benefits under 38 U.S.C.A. § 1311.  See 38 C.F.R. § 20.1106; 70 Fed. Reg. 72,211 (2005) (VA promulgated a final rule, effectively barring entitlement to "enhanced" dependency and indemnity compensation benefits under 38 U.S.C.A. § 1311(a)(2) on the basis of hypothetical entitlement); National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs (NOVA III),476 F.3d 872 (Fed. Cir. 2007) (affirming VA's regulation interpreting 38 U.S.C.A. § 1311(a)(2) and 38 U.S.C.A. § 1318 identically); 79 Fed. Reg. 52,984 (2014) (to be codified at 38 C.F.R. § 20.1106). 

Claims for DIC benefits under 38 U.S.C.A. § 1311 must be adjudicated with specific regard given to decisions made during a veteran's lifetime, and without consideration of hypothetical entitlement for benefits raised for the first time after a veteran's death.  The only possible ways for the appellant to prevail on her claim for benefits under 38 U.S.C.A. § 1311 are (1) to meet the statutory duration requirements for a total disability rating at the time of the Veteran's death; or (2) to show that such requirements would have been met, but for clear and unmistakable error in a previous decision.  An allegation of clear and unmistakable error has not been made by the appellant in the present case. "
 

 

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp16/Files1/1602238.txt

Edited May 20, 2016 by Berta

[sammy]

Thank you so much Berta...I will contact her and see if she can join us.