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

[namvet6567]

1 minute ago, namvet6567 said:

There should be 3 pages and I think I reversed pages 2&3.  Pages 4&5 are the same as one (I think)

[Berta]

An application forDIC is always also an application for a VA Pension.

My first thought was why didnt the VA consider her for a Pension, but then again perhaps that part of the DIC form was not filled out- then again, based on what the decision says, they apparently did not need to go forwrard at all, regarding the pension, due to requesting more evidence.

I divided the $3,649 by 9 months in 2020 nd the 6 mmonths in 2021 and got a monthly  amount of $243.I might be off by a month.I didnt figure in the Cola fr 2021

20 % SC is currently 

20% Disability

$284.93

                                                   with no dependents.

Or perhaps this is a Pension amount.

A Pension is based on Total disability and death would make that `100% P & T.

The 100% P & T does not jive with the SC rates.

However this is a valid CUE.

It is a violation of 38 CFR 4.6.

"38 CFR § 4.6 - Evaluation of evidence.

• CFR

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§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

The VA failed to read the Divorce Decree as it pertains to you and not the veteran who is deceased.

They would need to have the Marriage license, for your ex wife's marriage to this veteran, I cannot tell if the evidence they listed is Marraige license regaring this decased veteran.and also the forms that involve the spouse's income must be filled out and sent to the VA.

The June 22, 2021 letter they reference must be complied with,and certainly any information- if he did have a service connected disability-exactly how that caused orcontributed to his death.

I do not see the Death Certificate listed at all as evidence.

Can you tell us what the Medical examiner stated as # 1  Primary cause of death and also as any secondary contributing causes of death?

Also was an autopsy done?

Where did he serve and when and what was his MOS?

The Buddy Statement- did that comply with a Buddy Statement as explained in an article I did , available here under a search?

It would help to get ahold of his C file and all inservice SMRs and his military  Personnel file.The VARO has his C file and NARA holds Military records, but due to Covid, this all can take quite some time.

A valid CUE is within the decision and I can write one for you- maybe tomorrow-(the Century link outage is again affecting many of us who use the internet, slowing everything down)

It is possible that her SSA income would be more than a war time pension, but it is worth a try on that ,if she cannot attain DIC.

 

 

 

 

[john999]

So the rule that the spouse had to live with the vet for the last eight years of his life is still in effect to get the higher level of DIC?  Given that the spouse meets the ten year rule.  I still think ten years is too long.  IMO the VA should drop it down to 5 years for DIC and just go with the higher amount.  I think DIC that meets the 8 year rule is only about $1400 a month.  This is really small money for a widow to live on.  I know because my mother lived on something like that after my father died.  

[namvet6567]

1 hour ago, Berta said:

An application forDIC is always also an application for a VA Pension.

My first thought was why didnt the VA consider her for a Pension, but then again perhaps that part of the DIC form was not filled out- then again, based on what the decision says, they apparently did not need to go forwrard at all, regarding the pension, due to requesting more evidence.

I divided the $3,649 by 9 months in 2020 nd the 6 mmonths in 2021 and got a monthly  amount of $243.I might be off by a month.I didnt figure in the Cola fr 2021

20 % SC is currently 

20% Disability

$284.93

                                                   with no dependents.

Or perhaps this is a Pension amount.

A Pension is based on Total disability and death would make that `100% P & T.

The 100% P & T does not jive with the SC rates.

However this is a valid CUE.

It is a violation of 38 CFR 4.6.

"38 CFR § 4.6 - Evaluation of evidence.

• CFR

prev | next

§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

The VA failed to read the Divorce Decree as it pertains to you and not the veteran who is deceased.

They would need to have the Marriage license, for your ex wife's marriage to this veteran, I cannot tell if the evidence they listed is Marraige license regaring this decased veteran.and also the forms that involve the spouse's income must be filled out and sent to the VA.

The June 22, 2021 letter they reference must be complied with,and certainly any information- if he did have a service connected disability-exactly how that caused orcontributed to his death.

I do not see the Death Certificate listed at all as evidence.

Can you tell us what the Medical examiner stated as # 1  Primary cause of death and also as any secondary contributing causes of death?

Also was an autopsy done?

Where did he serve and when and what was his MOS?

The Buddy Statement- did that comply with a Buddy Statement as explained in an article I did , available here under a search?

It would help to get ahold of his C file and all inservice SMRs and his military  Personnel file.The VARO has his C file and NARA holds Military records, but due to Covid, this all can take quite some time.

A valid CUE is within the decision and I can write one for you- maybe tomorrow-(the Century link outage is again affecting many of us who use the internet, slowing everything down)

It is possible that her SSA income would be more than a war time pension, but it is worth a try on that ,if she cannot attain DIC.

 

 

 

 

Herein lies some of the problems.   Ok, his final check @ 100%+, & P&T, was the amount paid ($3649 or whatever it states.  He was rated 100% for ptsd, plus he had bypass(SC), a couple of stents, diabetes,  and according to a lady she spoke to a VA, many more SC disabilities, she couldn't tell her about, even tho she IS listed as NOK.

She can't find out what the cause of death was.  Because the nursing home had his brother as NOK, and he stated there was no marriage.  This may have been her husband's final action of revenge toward her for refusing to reconcile.  She had ChampVA, 4yrs of Chap 35 and resided w/him for 9+yrs.  He was being paid as being married(to her).  She has no idea what he died of.   May have been covid19.

The buddy statement must be the additional pages of her statement in support of claim, cuz there was no buddy statement.  She was able to get a dd214.  He had 2 dd214.  2 enlistment terms.  I believe second was  discharged w/bad paper but first qualified him for VA bennies.  If I recall correctly he was an MP.

I think she gets about $1280+/- from SSD, after medicare is deducted.  DIC would add about $1600 monthly.

 

[namvet6567]

I should've added that she needs the ChampVA as she has high medical expenses due to her disabilities.  So far she still has ChampVA.  Also he was a truck driver in his first enlistment(3yrs 2months), MP second enlistment also 3yrs 2 months.  The death cert she was able to get had no cause of death, just that he died, when and where.  That's all she could get from FL because she was not listed as the NOK on it.  There is no doubt she will win, eventually.  Just need to expedite if possible.  I'd love a CUE Berta, if you have time.  And to Todd, Thanks ever so much!!  As you can see having problems figuring how to post.  I don't do change well which is why I left back in 2015 after 15 or more yrs.

[Berta]

Flip- I misinterpreted the payment- so sorry----the decision states that the veteran had "minimum active duty requirements in order to qualify for pension."

And also that he had wartime service ( another pension requirement.)

This is what caused me to think it was a pension payment but it wasn't.

 

However the amount she received indicate he as getting the 100^ P & T as well as SMC.

These are the 2020 rates for SMC and I cannot figure out what level of SMC he was at- with the $3,549.83 payment.

This is a very confusing situation.

You said

"  She had ChampVA, 4yrs of Chap 35 and resided w/him for 9+yrs.  "

I assume that was based on his 100% P & T EED. 

Without a Death Certificate the VA has no hard copy knowledge or proof of his death- yet they did pay her his final VA compensation for one month.????? 

It sounds like he was a Vietnam incountry vet with IHD and DMIIbut t this point I am just taking a guess.

You mentioned 17 pages---of the decision and my Foxit pdf reader stated 17 pages but only three popped up in the pdf.

Is there more VA rationale on the denial of DIC?