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]

Try this:    M21-1, Part III, Subpart iii, Chapter 5, Section E - Historical (va.gov)

Scroll down, look under "Attachments"

 

Edited September 13, 2021 by toddt
add additional info

[Berta]

Flip. you stated:

"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. "

The VARO decision states:Divorce Decree, "received June 17, 2021"-that changes my opinion above----

If that is incorrect info from the VA, i must be corrected.

The decision also states:

"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."

Due toCovid th VA has extended some deadlines for sending in new evidence.

I will try to find that info and post it here.

The decision states:

"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."

I am surprised that they did send her some cash.I am assumming it was retro due him for Wartime Pension.

I see nothing here to indicate he was eligible for service connection.

 

 

[Berta]

VA Fast Letter on extensions of responses to VA  due to COVID:

https://www.northbrookfield.net/sites/g/files/vyhlif3576/f/uploads/vba_pl_covid-19_04.06.20_final.pdf

It is VA Policy Letter 20-02.

If this vet was eligible for a VA wartime pension, then it is possible the VA would award her a Wartime pension- butwhen the VA sawarded me a Wartime Pension, prior to properly awarding me 1151 and SC DIC, when I got the award amount, Ith VA had deducted SSA benefits I received for my daughter due to her dad's death.

It was a very minimal amount of cash,with no additional $ benefit to me.

It took them so long to award it that I reeived 1151 DIC within a few monts of the pension award and that changed everything.

In 2010 I succeeded in AO IHD direct service death and also AO DMII direct service cnnected death and that too changed everything.

I dont know if this widow is actually divorced or not----

How could VA have a divorse decree if they were deparated but never divorced?

 

 

 

[john999]

The ten year rule is really an injustice to widows.  Why does VA make it so hard?  I guess they want to avoid fraud where young girl marries an old vet just before he dies to get DIC.  They punish all vets to save a buck.

[Berta]

This BVA 2020 decision and there are more like it at the BVA web site, will not recognize a surviving spouse as a legitimate claimant for spousal benefits if the 'widow' is divircd from the veteran.

As this decision reveals, there is no Common Law status available in Masachusetts-

https://www.va.gov/vetapp20/files12/20080868.txt

"In part:

he appellant seeks recognition as the Veteran’s surviving spouse.  The appellant essentially contends that despite having divorce from the Veteran prior to his death, she is entitled to recognition as the surviving spouse because she still lived with the Veteran up until his passing.

DIC benefits are payable to the surviving spouse, children, and parents of a veteran who dies from a service-connected or compensable disability.  38 U.S.C. § 1310.  The term “surviving spouse,” except as provided in 38 C.F.R. § 3.52, means 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.  38 C.F.R. § 3.50 (b).

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. § 103 (c); 38 C.F.R. § 3.1 (j).  The surviving spouse of a veteran must also have lived with the veteran continuously from the date of marriage to the date of the veteran’s death, except where there was a separation that was due to the misconduct of, or procured by, the veteran without the fault of the spouse.  38 C.F.R. § 3.50 (b)(1).

The Veteran and the appellant were married in Massachusetts in December 1951.  The Veteran and the appellant were divorced in June 1973.  The Veteran passed away in April 1974.  The appellant contends she warrants DIC benefits because she and the Veteran cohabitated after the divorce and prior to his death.

Massachusetts state law does not recognize common law marriage. See Wilcox v. Trautz, 427 Mass. 326, 332-333 (1998) (stating “[w]e have never recognized common law marriage in this commonwealth.”).

Where an attempted marriage is invalid by reason of a “legal impediment,” the marriage will be deemed valid if: (a) the marriage occurred 1 year or more before the Veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage; (b) the claimant entered into the marriage without knowledge of this impediment; (c) the claimant cohabitated with the Veteran continuously from the date of marriage to the date of his or her death as outlined in 38 C.F.R. § 3.53; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the Veteran’s death.  38 U.S.C. § 103; 38 C.F.R. § 3.52.

he appellant seeks recognition as the Veteran’s surviving spouse.  The appellant essentially contends that despite having divorce from the Veteran prior to his death, she is entitled to recognition as the surviving spouse because she still lived with the Veteran up until his passing.

DIC benefits are payable to the surviving spouse, children, and parents of a veteran who dies from a service-connected or compensable disability.  38 U.S.C. § 1310.  The term “surviving spouse,” except as provided in 38 C.F.R. § 3.52, means 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.  38 C.F.R. § 3.50 (b).

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. § 103 (c); 38 C.F.R. § 3.1 (j).  The surviving spouse of a veteran must also have lived with the veteran continuously from the date of marriage to the date of the veteran’s death, except where there was a separation that was due to the misconduct of, or procured by, the veteran without the fault of the spouse.  38 C.F.R. § 3.50 (b)(1).

The Veteran and the appellant were married in Massachusetts in December 1951.  The Veteran and the appellant were divorced in June 1973.  The Veteran passed away in April 1974.  The appellant contends she warrants DIC benefits because she and the Veteran cohabitated after the divorce and prior to his death.

Massachusetts state law does not recognize common law marriage. See Wilcox v. Trautz, 427 Mass. 326, 332-333 (1998) (stating “[w]e have never recognized common law marriage in this commonwealth.”).

Where an attempted marriage is invalid by reason of a “legal impediment,” the marriage will be deemed valid if: (a) the marriage occurred 1 year or more before the Veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage; (b) the claimant entered into the marriage without knowledge of this impediment; (c) the claimant cohabitated with the Veteran continuously from the date of marriage to the date of his or her death as outlined in 38 C.F.R. § 3.53; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the Veteran’s death.  38 U.S.C. § 103; 38 C.F.R. § 3.52."

https://www.va.gov/vetapp20/files12/20080868.txt

 

[namvet6567]

3 minutes ago, Berta said:

VA Fast Letter on extensions of responses to VA  due to COVID:

https://www.northbrookfield.net/sites/g/files/vyhlif3576/f/uploads/vba_pl_covid-19_04.06.20_final.pdf

It is VA Policy Letter 20-02.

If this vet was eligible for a VA wartime pension, then it is possible the VA would award her a Wartime pension- butwhen the VA sawarded me a Wartime Pension, prior to properly awarding me 1151 and SC DIC, when I got the award amount, Ith VA had deducted SSA benefits I received for my daughter due to her dad's death.

It was a very minimal amount of cash,with no additional $ benefit to me.

It took them so long to award it that I reeived 1151 DIC within a few monts of the pension award and that changed everything.

In 2010 I succeeded in AO IHD direct service death and also AO DMII direct service cnnected death and that too changed everything.

I dont know if this widow is actually divorced or not----

How could VA have a divorse decree if they were deparated but never divorced?

 

 

 

I was her first husband.  We were married just under 15yrs(6/85-5/20).  We divorced in 2000.  So the divorce mentioned has nothing to do w/the claim(sorry, I should have edited that but wanted it to be complete).  She was my tenant and we have been friends(just friends, no benefits except rent received) since she left her husband, in 2009.  

Only looking for DIC info as with her SSD and his portion , she probably receives too much for pension.  The VA is trying to rebut the cohabitation requirement/cause for separation and the requirement that the VA accept her statements in lieu of other evidence, of which there is none except for the death cert statement that he wasn't married.  Hoping not to have to hire a FL atty.  The VA files state she is his next of kin(confirmed on the phonethru the VA phone number) but the VA adjudicator is ignoring that. Thanks for everything!