No Dic For Me

[goofycow]

A few days ago I called my county svc rep because VA has still been paying me UI at the rate for having a dependant even though my husband died 8/31. I wanted to know why were they still paying me too much. Well, this morning she called me back & told me that Little Rock was going to turn down my claim for DIC because I can not draw UI & DIC at the same time. She couldn't answer why they were taking so long to adjust my pay. I know why!!!! That way they can deny my claim & twist the knife in my back by demanding all that extra they have paid me over 7 mo! Life is sweet for the VA :D

My husband was my buffer to the outside world. He drove me everywhere. Now I only drive to the nearest Wal mat & across the river to the liquor store. My husband's bike still sits parked out on my front porch because I am too afraid to put an ad in the paper. I live alone out in the country & fear who might come out in answer to my ad. The same goes for the Bronco that has been sitting in the garage. It hasn't been started in 10 months.

Yes indeed, life is a hoot! Thanks for letting me vent.

Liz

[Berta]

I dont buy what that rep is trying to sell to you-Liz-

you can get TDIU due to your own military service disabilities.

you can get DIC if your spouse, a veteran too- died of service connected disabilities.

You do present an unusal situation but this is becoming not as unusual as it used to be-

DIC as spouse of SC vet who died due to SC and TDIU in your own right-are two separate issues.

I think your vet rep was talking out of her---------hat-

How the heck does she know when and why the VA will deny your DIC claim?

Does she moonlight as a VA rater too?

[spike]

if they had an offest wouldnt they pro rate it and and take it out of your monthly benefit so it would not cause a financial hardship?

[Philip Rogers]

A few days ago I called my county svc rep because VA has still been paying me UI at the rate for having a dependant even though my husband died 8/31. I wanted to know why were they still paying me too much. Well, this morning she called me back & told me that Little Rock was going to turn down my claim for DIC because I can not draw UI & DIC at the same time. She couldn't answer why they were taking so long to adjust my pay. I know why!!!! That way they can deny my claim & twist the knife in my back by demanding all that extra they have paid me over 7 mo! Life is sweet for the VA :D

My husband was my buffer to the outside world. He drove me everywhere. Now I only drive to the nearest Wal mat & across the river to the liquor store. My husband's bike still sits parked out on my front porch because I am too afraid to put an ad in the paper. I live alone out in the country & fear who might come out in answer to my ad. The same goes for the Bronco that has been sitting in the garage. It hasn't been started in 10 months.

Yes indeed, life is a hoot! Thanks for letting me vent.

Liz

Liz, first things first. Did you directly notify the VA of his death, right after it happened? If so, should they request payback, you should request a hardship waiver. If it's their error they will usually waive recovery. As for the TDIU and DIC, I agree w/Berta. One is for your service and the other a benefit of his service. I would fight that one all the way to the CAVC and further if necessary.

pr

[jbasser]

Lets put our Skills together and find the exact regs for this lady so she can rebut the Ro and the Vet Rep. She has been through enough.

Bless you liz.

John

[Tbird]

i believe like berta that this will become a more common issue. We do need to find the regs on this so we can quote it, the question as i see it posed here is does the individual's service connected disability impact their ability to collect dic or the amount of dic. i haven't found a answer yet that is in black and white.

[Berta]

I have never seen any regs on this but will check further- I am sure this issue has come up before with the VA.

It just makes sense that these are two separate issue.

There is a Prohibition on Duplicate Benefits regulation-

but nowhere in that reg do I see this situation.I do think I saw this once in an old BVA decision.

A DIC benefit as spouse of SC death vet is completely different than any SC comp a spouse can get his or her own right.

Separate regs and separate awards-

I think it would be just awful and illegal if a disabled vet would have their comp

lowered or lost if they get DIC too and vice versa-

A vet cannot get pension and comp at the same time-

which makes sense and the Prohibition reg below involves offsets on Sec 1151 claims-only prohibiting double dip on malpractice if they involve FTCA too.

I think anyone in this position can support receipt of both DIC and their own SC comp-

because the VA has never published regs that prevent them from doing that.I have never seen this prohibited in the DIC regs.

http://72.14.209.104/custom?q=cache:FPd2Pk...381742111066612

[Berta]

Before I waste my time looking for a reg that I dont think exists:

"A few days ago I called my county svc rep because VA has still been paying me UI at the rate for having a dependant even though my husband died 8/31. I wanted to know why were they still paying me too much. Well, this morning she called me back & told me that Little Rock was going to turn down my claim for DIC because I can not draw UI & DIC at the same time"

WHy not ask you county rep for a copy of or a citation to this reg she seems to think exists.

Our county Veterans Service Agency can do many things for vets and their families-

property tax exemption info, copies if DD 214s, etc-

as far as claims go- I have conferred with them many times and in my opinion-they dont have a clue on most VA claims stuff and certainly not on DIC.

I sure would like to see what she says if you ask her for the regulation that supports what she said.

[goofycow]

Berta:

Thank you for all your input. I would like to make one thing clear. My svc officer did not come up with this on her own. She told me the RO in Little Rock told her that. It would be nice if I could find something in writing but it seems like this is another case of VA trying to bend the regs to their own advantage.

Second of all, I do live in Arkansas. I think the "good ol boys" are still trying to come to grips with the concept of a female veteran let alone a veteran who is also a widow. I guess I will just have to sit tight until I get the actual paperwork.

Oh btw, somehow my claim got routed to Arizona at first. I found this out when I got a letter fm Phonex(sp!) I had to argue with the people in AZ & explain to them that my husband had never been a resident of that state. Maybe I should have left the claim there. I might have had a better chance of winning. :D

Thanks again.

Liz

[Pete53]

Don't give up!!!

[tssnave]

Liz,

I agree with Berta. Ask your svc rep to ask the RO rep what reg he was quoting. Since the svc rep expects you to act (or in this case, NOT act) on this unoffical advice from the RO she should be willing to get the citation for you from whoever she talked to at the RO. If she can't come up with the regulation line and verse (ask for a hard copy) then tell her since she and/or the RO aren't offering you regulation documented advice then you want to submit a the DIC claim. If she balks, get another svc rep.

I will say this on an urelated topic, I just read in the Chapter 35 pamphlet online that the education benefits from any gov't program are limited to 48 months total so if your spouse used their personal entitlement for their own GI Bill for 30 months they would only have 18 months eligibility as a spouse under the Chapter 35 Dependent's Education Benefit. While I know this doesn't address your query, since I just read it and it has to do with a spouse who had other veteran's benefits under their own right as well as entitlement as a spouse I thought I'd throw it out there FYI.

Please accept my condolences on the loss of your husband.

ts snave

[theotherguy]

A few days ago I called my county svc rep because VA has still been paying me UI at the rate for having a dependant even though my husband died 8/31. I wanted to know why were they still paying me too much. Well, this morning she called me back & told me that Little Rock was going to turn down my claim for DIC because I can not draw UI & DIC at the same time. She couldn't answer why they were taking so long to adjust my pay. I know why!!!! That way they can deny my claim & twist the knife in my back by demanding all that extra they have paid me over 7 mo! Life is sweet for the VA

My husband was my buffer to the outside world. He drove me everywhere. Now I only drive to the nearest Wal mat & across the river to the liquor store. My husband's bike still sits parked out on my front porch because I am too afraid to put an ad in the paper. I live alone out in the country & fear who might come out in answer to my ad. The same goes for the Bronco that has been sitting in the garage. It hasn't been started in 10 months.

Yes indeed, life is a hoot! Thanks for letting me vent.

Liz

Liz,

If I'm reading 38 CFR 3.700(B)(1) correctly, I think you can still draw your compensation at any rate and still receive DIC benefits for your husband unless you are already drawing them from a previous marriage. Paragraph (a)(4) deals with improved pension so that wouldn't apply here. Have a look and talk it over with your representative.

(B) Dependents:

(1) Surviving spouse. Subject to the provisions of paragraph (a)(4) of this section, the receipt of pension, compensation, or dependency and indemnity compensation by a surviving spouse because of the death of any veteran, or receipt of pension or compensation because of his or her own service, shall not bar the payment to the surviving spouse of pension, compensation, or dependency and indemnity compensation because of the death or disability of any other veteran; however, other than insurance, concurrent benefits under laws administered by the Department of Veterans Affairs may not be authorized to a surviving spouse by reason of the death of more than one veteran to whom the surviving spouse has been married. The surviving spouse may elect to receive benefits based on the death of one such spouse and the election places the right to benefits based on the deaths of other spouses in suspense. The suspension may be lifted at any time by another election based on the death of another spouse. Benefits payable in the elected case will be subject to prior payments for the same period based on the death of the other spouse where, under the provisions of §3.400© there is entitlement in the elected case prior to date of receipt of the election. (Authority: 38 U.S.C. 5304)

Hope this helps :)

[goofycow]

Theotherguy:

This may be exactly what I have been looking for. I will have to get a copy of this for my svc rep & the RO.

Honestly though, after reading Berta's saga & others on this forum, it seems that DIC even even harder to get than other VA benefits.

Thanks otherguy.

Liz

[theotherguy]

Liz,

I'd be happy to help out however possible. If you could give me some background information on what his service-connected disabilities were and what conditions are listed as the primary and contributory causes of death on his death certificate, I'm sure that myself or many of the others may be able to help guide you in the right direction. Remember that 38 U.S.C. 1318 comes into play if he was rated as totally disabled due to his service-connected disabilities.

One last thing, you should definitely consider filing a Notice of Disagreement if an overpayment is created. The VA is required to have "matching programs" in cases where veterans are married to other veterans and their own manual states that this is supposed to be clearly identified on the front of the claims folder. I would think that you could ask that this be determined to be an administrative error since they clearly were aware of the veteran's death but failed to take appropriate action on the corresponding claims folder.

[goofycow]

Theotherguy:

I cited the reg you turned me onto in an IRIS inquiry. Would you believe I got a reply back today fm VA stating that they found a reg that allows a veteran & surviving spouse to draw both IU and DIC. Imagine that!

My husband died from miarcardial infraction caused by DMII and years of uncontrolled high blood pressure. He was medically retired fm the Navy for angolosing spondolititst. But his medical boards also mentioned major depression. The Navy prescribed enough antidepressants for him to fill a red radio wagon! The problem is, he would never go to VA or file a claim but he did go to a private doctor for about 7 years before he died. He served on board aircraft carriers with several different fighter squradons. He had at least 2 Viet Nam service metals plus a Viet nam Galanty Cross.

However, knowing VA, this is going to be a long, uphill battle.

Liz

Please excuse the butchered attempt at spelling his different medical conditions. I think the lay term for what caused his death is called heart failure/heart attack. The second term concerned his back, a disease that would eventually restrict his breathing.

[theotherguy]

I would certainly think that you could get a statement from his doctor indicating that the diabetes contributed to the myocardial infarction which caused his death. Was his diabetes listed as a contributory cause of death on the death certificate? If so, I think that your claim stand a very good chance of being granted even without the need to get a medical opinion. However, I would still ask the doctor to give you a statement if he/she is willing.

We're here to help if you need it.

[Berta]

Absolutely- I was positive that if a vet draws comp in their own right -they can get DIC too-

but I could not find any reg ---

Your husband appears to be a Blue Water veteran.

He was exposed to AO.

By all means file the claim as death due to heart disease with DMII contributing.

Those private medical records will be needed by the VA.

Cite the Haas CAVC decision in the claim.It is at hadit under search.

The Haas V Nicholson decision was the first Blue WAter AO success.

VA is attempting to prevent Blue Water AO vets and their widows (I checked with a lawyer at NVLSP on that-BW AO widows are within Haas situation too )to receive comp and DIC.

There is now a stay under Haas claims.However-I was in a stay once -(Garnder V Derwinksi 1151 stay )when they lift the stay I believe Haas will continue to be law of the land and the VA will have to decide all pending Blue Water veterans AO claims.

You might want to check in at the Blue Water Navy web site-

mayny here will get news when the Haas stay is lifted and we will post it-

I just hope the VA is not successful in prohibiting further BW vet AO claims to succeed.