Questions on DIC

[namvet6567]

Trying to help a spouse who was separated from her 100% P&T husband, for 10.5yrs, at time of his death.  Never divorced as reconciliation was a consideration.  They paid her his final check but then denied her DIC.  He died in early 2020 at a VA contracted nursing home in FL.  VA never notified her of his death.  Also tried to look up m21-1 but found the VA may have discontinued it??????  Thx

[toddt]

38 CFR 3.22 - DIC benefits for survivors of certain veterans rated totally disabled at time of death. (govregs.com)

[namvet6567]

9 hours ago, toddt said:

38 CFR 3.22 - DIC benefits for survivors of certain veterans rated totally disabled at time of death. (govregs.com)

Thanks toddt.  In particular I'm looking for "Manual M21=1, III.iii.5.E.6.a" referred to by The Vererans Benefits Manual (2018-2019).  Just need to point out how the claim should be processed and not be jerked around by some VA employee trying to clear her/his desk.  jmo  Sign me "Flip" 

[Berta]

FLIP!!!!!   I am always grateful to you for the many many years of your hard work for veterans and their survivors.

I will try to find what you need in M21-1MR but separated spouses can have a hard time getting DIC.

However the VA will cosider evidence of extenuating circumstances.

In this recent 2021 BVA decision, it shows what I mean:

In part:

"A “surviving spouse” for VA purposes is defined as a person 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; and (1) who lived with the veteran continuously from the date of marriage to the date of the veteran’s death except where there was a separation which was due to the misconduct of, or procured by, the veteran without fault of the spouse; and (2) has not remarried or has not since the death of the veteran lived with another person and held himself/herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b).

 

 

The additional evidence received since the February 2004 rating decision includes testimony regarding abuse by the Veteran that resulted in her separation. The appellant also provided statements from the Veteran’s children that he was abusive and violent. The appellant also provided an affidavit from a county clerk that she was not divorced from the Veteran at the time of his death. See August 2020 Affidavit. The appellant’s contentions and corroborating evidence were not previously of record and pertain to the requirements for recognition as a surviving spouse. The Board finds that the appellant’s testimony and corroborating statements from the Veteran’s children are new, relate to whether the appellant did not cohabitate with the Veteran until his death due to his misconduct, and raises a reasonable possibility of substantiating the claim for recognition of the appellant as the Veteran’s surviving spouse for VA DIC benefit purposes. 

 

As new and material evidence has been received, the claim of recognition of the appellant as the Veteran’s surviving spouse for VA DIC benefit purposes is reopened. 38 C.F.R. § 3.156(a).

 

2. Entitlement to recognition as the Veteran's surviving spouse for purposes of eligibility for Department of Veterans Affairs (VA) death benefits is granted."

 

https://www.va.gov/vetapp21/files2/21007068.txt

 

So- assuming the widow can provide the VA with extenuating circumstances, it then leaves the question of whether the veteran's death was from a service connected disability- or that a SC disability that contributed substantially to his death.

 

Have you seen the veteran's death certificate?

 

Is this widow collecting SSA survivor benefits  due to the veteran's death?

 

Would she give you permission tto scan and attach the DIC denial here, to include the Evidence list?

Please cover C file #, name, address, prior to scanning it.

 

NOTHING is impossible

 

 

 

Edited September 13, 2021 by Berta
in cloud poor internet access

[Berta]

I believe this would be found in M21-1MR , Subpart iii, Section B -but my reference is dated 2015 from:

https://www.archangelinitiativeinc.com/m21-1-adjudication-manual

I think the only change was when the VA stated widows/widowers could remarry after ago 57 and retain their DIC VA benefits.(2015)

I will check further because I am sure we have a more recent version of M21-1MR here-

and I will check the 2020-2021 VBM from NVLSP to see what they say.

The age 57 remarry regulations are explained here:

"Regarding Dependency and Indemnity Compensation (DIC), a remarried surviving spouse whose subsequent marriage is annulled or declared void can reestablish eligibility as a surviving spouse.  However, effective September 30, 1998, the law was changed to allow a surviving spouse to reestablish DIC eligibility after termination of remarriage.  Therefore, after September 30, 1998, eligibility for DIC is established in any case in which the remarriage of the surviving spouse is terminated by death, divorce, or annulment.  Also, remarriage of a surviving spouse after the age of 57 does not preclude continued payment of DIC.  

Regarding Death (Survivor’s) Pension benefits, the law generally requires a surviving spouse’s entitlement to be terminated if the surviving spouse remarries, regardless of age, even if that remarriage is terminated by death or divorce.  However, VA regulations establish limited exceptions that generally allow entitlement to Death Pension to be reestablished if the marriage was:
•         Annulled or declared void.
•         Terminated by death or divorce on or after January 1, 1971, and before November 1, 1990."

https://www.va.gov/survivors/faqs.asp

 

 

 

[namvet6567]

18 minutes ago, Berta said:

I believe this would be found in M21-1MR , Subpart iii, Section B -but my reference is dated 2015 from:

https://www.archangelinitiativeinc.com/m21-1-adjudication-manual

I think the only change was when the VA stated widows/widowers could remarry after ago 57 and retain their DIC VA benefits.(2015)

I will check further because I am sure we have a more recent version of M21-1MR here-

and I will check the 2020-2021 VBM from NVLSP to see what they say.

The age 57 remarry regulations are explained here:

"Regarding Dependency and Indemnity Compensation (DIC), a remarried surviving spouse whose subsequent marriage is annulled or declared void can reestablish eligibility as a surviving spouse.  However, effective September 30, 1998, the law was changed to allow a surviving spouse to reestablish DIC eligibility after termination of remarriage.  Therefore, after September 30, 1998, eligibility for DIC is established in any case in which the remarriage of the surviving spouse is terminated by death, divorce, or annulment.  Also, remarriage of a surviving spouse after the age of 57 does not preclude continued payment of DIC.  

Regarding Death (Survivor’s) Pension benefits, the law generally requires a surviving spouse’s entitlement to be terminated if the surviving spouse remarries, regardless of age, even if that remarriage is terminated by death or divorce.  However, VA regulations establish limited exceptions that generally allow entitlement to Death Pension to be reestablished if the marriage was:
•         Annulled or declared void.
•         Terminated by death or divorce on or after January 1, 1971, and before November 1, 1990."

https://www.va.gov/survivors/faqs.asp

 

 

 

Thanks, Berta!!!  Good to hear from you and especially your expertise!  I'll post the denial once I figure out how to scan it etc..  I have her permission.

[namvet6567]

Here's the what they said/did.  I will post the actual decision once I figure out how to.  She is not listed on the death certificate because his brother (whom he had been estranged from for decades was the informant and stated he was not married.)  Death happened in FL and FL won't allow her to change it w/o going to court.  SSA has awarded her as his widow, as she has been disabled since early 90's.

 

Here's the VA's statement:

"We made a decision on your claim for death benefits received June 17, 2021. This letter tells you about your entitlement amount, payment start date, what we decided, how we made our decision, and the evidence used to decide your claim. We have also included information about additional benefits, what to do if you disagree with our decision, and who to contact if you have questions or need assistance. Your Award Amount and Payment Start Date Your monthly entitlement amount is shown below:

Monthly Entitlement Amount Payment Start Date Reason For Change $3,649.83 Feb 1, 2020 Eligible for Veteran's Rate Month of Death 0.00 Mar 1, 2020 Benefit Terminated Your payment for February is the rate we would have paid the deceased veteran.

What We Decided We denied your claim for dependency and indemnity compensation (DIC), death pension, and accrued benefits For the elements not met that are required to grant benefits, please see the denial reasons below.

How Did We Make Our Decision? On June 22, 2021, we wrote and asked you to send us additional information. For your convenience, we have attached a copy of that letter. Because we have not received it, we must deny your claim.

When and Where Do You Send the Information or Evidence? Please send us the information we asked for as soon as you can. If you are having any difficulty getting this evidence, call us. We may be able to help you. If we get the evidence within one year of the date of this letter, we can continue processing your claim. Information received after one year of the date of this letter, must be considered a new claim. That means any benefits you may be eligible for can't start before the date we receive your new claim IMPORTANT It is to your advantage to send this information as soon as you can.

What Evidence We Received x Death Certificate, received May 05, 2021 x Marriage Certificate, received May 05, 2021 x VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits by a Surviving Spouse or Child, received June 17, 2021 x VA Form 21-4138, Statement in Support of Claim, received June 17, 2021 x Divorce Decree, received June 17, 2021 x Buddy statement, received June 17, 2021

Favorable Findings:  Active Duty Service The Veteran had the minimum active duty requirements in order to qualify for pension. Wartime Service The Veteran had wartime service.  Character of Service The Veteran’s character of service meets the requirements to qualify for pension.

What You Should Do If You Disagree With Our Decision If you do not agree with this decision, you have one year from the date of this letter to select a review option to preserve your earliest effective benefit date. The review options and their proper applications are as follows, for a(n): x Supplemental Claim, complete VA Form 20-0995, Decision Review Request: Supplemental Claim. x Higher-Level Review, complete VA Form 20-0996, Decision Review Request: HigherLevel Review. x Appeal to the Board, complete VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). Please see the enclosed VA Form 20-0998, Your Rights To Seek Further Review Of Our Decision. It explains your options for an additional review. You may obtain any of the required application by down loading them from www.va.gov/vaforms/ or by contacting us. You can also learn more about the disagreement process at www.va.gov/decision-reviews. If you would like to obtain or access evidence used in making this decision, please contact us as noted below. Some evidence may be obtained by signing in at www.va.gov. If You Have Questions or Need Assistance If you have any questions, you may contact us by telephone, e-mail, or letter. If you Here is what to do. Telephone Call us at 1-800-827-1000. If you use a Telecommunications Device for the Deaf (TDD), the Federal number is 711. Use the Internet Send electronic inquiries through the Internet at https://iris.custhelp.va.gov Write Put your full name and VA file number on the letter. Please send all correspondence to the address in the enclosed “Where to Send Your Written Correspondence”. In all cases, be sure to refer to your VA file number. If you are looking for general information about benefits and eligibility, you should visit our website at https://www.va.gov, or search the Frequently Asked Questions (FAQs) at https://iris.va.gov. We have no record of you appointing a service organization or representative to assist you with your claim. You can contact us for a listing of the recognized veterans' service organizations and/or representatives. Veterans' service organizations, which are recognized or approved to provide services to the veteran community, can also help you with any questions.

Sincerely yours,

RO Director VA Regional"