Can a Widow of a Soldier Continue Benefits With Other Children

When a spouse dies, it can feel as though your world has been upended.  This is especially true if you and your spouse relied on monthly veterans' disability benefits.

While disability compensation payments are not continued for a surviving spouse after death, survivors may be entitled to a different type of benefit called Dependency and Indemnity Compensation (DIC).

What Is Dependency and Indemnity Compensation?

Dependency and Indemnity Compensation (DIC) is a tax-free monetary benefit from the Department of Veterans Affairs (VA) paid to eligible survivors of military service members who died in the line of duty or eligible survivors of veterans whose death resulted from a service-connected condition.  Legally married military couples of any orientation can apply for DIC benefits.

It is important to note that DIC is separate from the benefits the veteran may have been receiving during their lifetime.  This means that their monthly benefits will be discontinued at the time of their passing.

Am I Eligible for DIC VA Benefits?

Not everyone who was married to a service member is entitled to DIC.  There are certain criteria that both the veteran and surviving spouse must meet.

According to VA, the surviving spouse of a veteran is eligible to receive DIC if they:

• Were married to a service member who died while on active duty, active duty for training, or inactive duty training;or
• Were legally married to the veteran before January 1, 1957;or
• Married the veteran within 15 years of military discharge when the service-connected condition that caused the veteran's death began or was aggravated;or
• Were married to the veteran for at least one year immediately preceding the veteran's death;or
• Had a child or children with the veteran,and
  • Continuously cohabited (lived with) the veteran until their time of passingand were not separated from the veteran or, if separated, were not responsible for the separation are not currently remarried.

Essentially, DIC benefits can be awarded to non-spouses if the individual had a child with the veteran and cohabited with them until the time of the veteran's passing.

Dependency and Indemnity Compensation Benefits After Remarriage

If the surviving spouse remarries, VA will generally discontinue DIC benefits.  However, there are some exceptions.  If the surviving spouse remarries and that marriage ends in a death, divorce, or annulment then DIC benefits can be restored from the date of termination of that marriage.

Another instance where DIC benefits could be continued after a remarriage is if the surviving spouse remarries after the age of 57.  In this case, the new marriage should not have an impact on DIC benefits, and the benefits will continue moving forward.

Importantly, if the surviving spouse remarriesbefore reaching the age of 57, DIC benefits will not continue.  They will also not be reinstated when the surviving spouse does reach the age of 57.

To summarize, DIC benefits can continue or be restored with remarriage in the following instances:

• DIC can be restored if the remarriage ended in death, divorce, or annulment;or,
• A surviving spouse can continue to receive DIC if they remarriedon or afterreaching age 57 andon or after December 16, 2003.

Note: Unfortunately, if you are the surviving spouse of a veteran who died on or after reaching age 57, butbeforeDecember 16, 2003, VA requires that you must have re-applied for DIC between December 16, 2003 and December 15, 2004 to have DIC benefits restored.

VA DIC Benefits for Dependent Children

Dependent children must meet certain requirements to receive DIC benefits.  These qualifications are very similar to those for a veteran claiming a dependent child.

Below is a breakdown of when a dependent child may be eligible for DIC benefits:

• The dependent child is under the age of 18;or
• The dependent child is between the ages of 18 and 23 and attending a VA approved school;or
• The dependent child was considered permanently incapacitated before turning 18; and
• The dependent child is unmarried.

Proving Service Connection for Cause of Death

To qualify for DIC benefits, you must show VA that the veteran's death was connected to their service.  If they died in the line of duty or as a result of analready service-connected disability, this process should be relatively straightforward.  However, there are a few VA regulations meant to speed up the process that it may be helpful to know:

• If the death certificate lists one of the veteran's service-connected conditions as a cause of death, VA should grant service connection without further investigation.
• If the veteran's service-connected condition was acontributorycause of death, VA shouldpresumethat it contributed "substantially and materially" to the veteran's death, and thus grant service connection without further investigation.

What If My Spouse Did Not Die from a Service-Connected Condition?

If the condition that caused the veteran's death wasnot already service-connected when they died, you can still apply for DIC.  Claims like these may take longer to process, though, because VA adjudicators will follow the typical disability claims review process to decide whether the cause of death is service-connected.

Under 38 USC § 1318, veterans who did not die due to a service-connected disability but meet the following criteria may also be eligible for DIC if they:

• Had a service-connected disability that VA rated totally disabling (i.e., a 100 percent rating);or
• Had disabilities that combined to be 100 percent to include on the basis of total disability based on individual unemployability (TDIU);and
• The disability was rated totally disabling for at least 10 years before death, or since the veteran's discharge and at least five years before death, or for at least one year before death if the veteran was a former prisoner of war.

For example, say a Vietnam veteran did not apply for post-traumatic stress disorder (PTSD) disability benefits during their lifetime, but the condition later became a contributory cause of death.  The surviving spouse or dependent can apply for service connection after the fact and, if VA grants service connection, they will then be entitled to DIC.  It is important to note that in this case the surviving spouse or dependent child will not receive retroactive disability benefits for the veteran's PTSD, but they can use it for the purposes of establishing DIC.

Additionally, survivors who receive benefits under 38 USC § 1318 are entitled to the same DIC benefits as survivors whose spouses died from service-connected disabilities.

Presumptive Service Connection for Cause of Death

If the veteran's cause of death was a presumptive condition and evidence shows the veteran meets the particular presumptive criteria, VA should grant service connection without further investigation.  Presumptive conditions are also another way that a spouse or dependent may establish entitlement to DIC benefits for conditions that were not service connected at the time of death.  An example of this is Agent Orange exposure in Vietnam.

Agent Orange exposure can lead to multiple presumptive conditions.  VA updates its presumptive list periodically, which means that a condition that caused the veteran's death has the potential to become a presumptive condition in the future.  If this is the case, the surviving spouse or dependent child can file for DIC benefits after the fact.

Monthly VA Dependency and Indemnity Compensation Rates

As of 2022, the fixed monthly benefit amount for DIC is$1,437.65.

Additional Compensation for Dependent Children

If your children are under age 18 and live in your household, you are eligible for additional compensation for each child.  As of 2022, each qualifying child is an additional $301.74 per month.  If the veteran had a "helpless child," the monthly payment will include an additional $607.01.  This benefit is generally available for a period of two years from when you start receiving benefits or until the child turns 18.  If one or more of your children is disabled, you can continue to receive benefits on their behalf even beyond age 18.

You can also receive additional compensation if you are homebound and need assistance carrying out activities of daily living (for instance, bathing, dressing, eating, or toileting).

8 Years Totally Disabled: Additional Compensation

If your veteran spouse was rated totally disabled for eight continuous years immediately before deathandyou were married to the veteran during those eight years, you may be eligible for additional compensation per month.  The veteran may have been totally disabled due to one disability rated 100 percent, multiple disabilities that combined to 100 percent, or TDIU.

How to Apply for Dependency and Indemnity Compensation

Surviving dependents can apply for VA DIC benefits online using VA's website or print and submit Form 21-534 to VA.

In this instance, be sure to include supporting documentation proving you meet the criteria for DIC, such as the veteran's death certificate to indicate cause of death, a marriage certificate, any prior divorce decrees, birth certificates, and school transcripts.  Submitting this evidence with the initial application for DIC can help speed up the adjudication process.

When filing Form 21-534, you will find that there is a specific question regarding whether you are seeking service connection for the cause of death.  If the veteran did not pass away from a service-connected condition, you will want to make sure that you answer this question appropriately.

If your spouse was killed on active duty or while conducting a training exercise, VA will assign a Casualty Assistance Officer to file for surviving spouse benefits on your behalf.

When Should I Apply for Dependency and Indemnity Compensation?

You should apply for DIC VA benefits as soon as possible after the veteran's death.  If you applywithin one year of the veteran's death and are granted benefits, you will likely be paid retroactively from one month after the date of the veteran's death.  Typically, the family receives one final payment of the veteran's disability benefits and then will begin receiving DIC benefits the following month.

If you do not apply for DIC within a year of the veteran's death and VA later grants you benefits, your effective date (i.e., the date from which you begin receiving benefits) will be the date VA receives your DIC claim.

There are exceptions for surviving spouses and dependent children of Vietnam veterans who meet the Nehmer Class definition and those of Blue Water Navy Veterans.  In these cases, a Veterans Service Officer (VSO) or an accredited representative or attorney may be able to help and provide useful insight regarding the effective date for DIC benefits.

How Long Do Dependency and Indemnity Compensation Benefits Last?

Once granted, DIC ispermanent for surviving spouses,unless the surviving spouse remarries prior to turning 57 years of age.  For surviving children, DIC usually lasts until the age of 18 (or 23 if the child is still in school).  Adult children who are permanently incapable of self-support due to a condition may also be entitled to DIC.

Are Surviving Spouses Eligible for Any Other Benefits?

If you are eligible for DIC, you may also be eligible for the following benefits:

• Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA)
• Dependents Educational Assistance (DEA)
• Burial Benefits

Was Your DIC VA Benefits Claim Denied?

If VA denied your claim for Dependency and Indemnity Compensation, the legal team at Chisholm Chisholm & Kilpatrick LTD may be able to help.  To schedule a free consultation with a member of our team, call800-544-9144.

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Source: https://cck-law.com/blog/dependency-indemnity-compensation-qualify/

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