About DIC Benefits: A Guide to How to Win DIC Benefits

Dependents and Indemnity Compensation (DIC) is available to certain relatives of veterans who either (a) die of conditions sustained (or aggravated) during active duty, or (b) are, by law, deemed as though they had died as a result of a service-related condition. For purposes of DIC, service includes service in either the military, naval, air, or space forces.

Disability Ratings

For purposes of DIC and other veterans’ benefits, the Department of Veterans Affairs (VA) rates the extent that an applying veteran has become disabled due to service-related condition(s). When relatives of a deceased veteran apply for DIC, such veteran may have undergone a rating in connection with an application for disability benefits during such veteran’s lifetime. The effect of such prior rating on a later DIC application will be addressed below.

This rating takes the form of a percentage below full function that the veteran is deemed to be operating due to the disabilities. Thus, for example, a veteran who, solely as a result of a service-related condition, is deemed functioning at only 80% capacity, is deemed to be 20% disabled. In assigning a rating, VA considers all service-related disabilities, but disregards conditions that are not service-related.

The rating can determine whether, and to what extent, a veteran is eligible for the subject benefits. As we will discuss below, the procedures for applying for DIC benefits include a VA disability rating.

Which Veterans Qualify Their Relatives for DIC?

A veteran will qualify his/her pertinent relatives for DIC benefits if the veteran satisfies the criteria of either Section 1310 or Section 1318.

Section 1310

Section 1310 provides that a veteran qualifies his/her pertinent relatives for DIC if such veteran dies from a condition that is related to such veteran’s service (in the words of the statute, “a service-connected disability”). A veteran will qualify his/her relatives for DIC if a service-related condition was the principal cause of the veteran’s death.

A veteran will likewise qualify his/her relative(s) for DIC if a service-related condition contributed to the veteran’s death by aggravating the condition that was the cause of death. For a service-related condition to be deemed to have contributed to the veteran’s death, the service-related condition must have contributed “substantially or materially,” and not merely casually. When the service-related condition affected a vital organ, the pertinent regulations suggest that such condition should more likely be deemed to have contributed to the veteran’s death, and the VA is admonished to consider whether the service-related condition impaired the veteran’s bodily defenses to the condition that caused his/her death.

Conversely, in certain situations, the effects of some conditions may be so “overwhelming” and certain to cause death as to render meaningless other conditions that the veteran had been suffering from at the time of his/her death. When a veteran dies from such a condition, another condition that the veteran sustained in connection with service will typically not be considered to have contributed to the veteran’s death unless the service-related condition affected a vital organ and was “of a progressive or debilitative nature.”

Section 1318

Under Section 1318, a veteran will qualify his/her relatives for DIC benefits, regardless of the actual cause(s) of the veteran’s death (provided that the death was not caused by the veteran’s “willful” misconduct, meaning conduct for which the veteran knew about, or recklessly disregarded, the conduct’s probable consequences), if the veteran received, or was entitled to receive (defined in the ensuing paragraph), disability benefits for a service-related disability rated 100% disabling (see above, section entitled “Disability Ratings”) for a continuous period of (1) ten years immediately prior to the veteran’s death; (2) five years immediately following the veteran’s discharge or release from acting duty; or (3) in the case of a veteran who was a prisoner of war, for a period of one year immediately prior to death.

The pertinent regulations consider a veteran to have been “entitled to receive” disability benefits only if the veteran applied for the benefits, but did not receive them for one of several specifically-enumerated reasons. Therefore, Section 1318 is available only in the case of a veteran who received disability benefits or who applied for disability benefits and who would have received them but for one of the reasons listed in the regulations.

Which Relatives of Qualifying Veterans are Eligible to Receive DIC?

When a veteran qualifies for DIC under Section 1310, the veteran’s surviving spouse, child(ren), and/or dependent parent(s) may be eligible to receive DIC.

Surviving Spouse

The surviving spouse (the veteran’s spouse as of his/her death) will typically be eligible to receive DIC. If one or more qualifying children (defined in the subsection “Children” below) of the veteran and/or of the surviving spouse are living with the surviving spouse, or if the surviving spouse is disabled or living in a nursing home, the amount of DIC that the surviving spouse receives will be increased by a respective amount set by statute (a further discussion of these additional amounts can be found below).

If the veteran qualifies for DIC under Section 1318 but not under Section 1310 (see discussion above), the surviving spouse will only be eligible for DIC if either (a) the surviving spouse was married to the veteran for at least a year prior to the veteran’s death, and/or (b) the veteran and the surviving spouse had a child together (either before or during the marriage).

Children

As set forth above, minor children (under 18) of a qualifying veteran living with the veteran’s surviving spouse will render the surviving spouse eligible for additional DIC. When a qualifying veteran has minor children but no surviving spouse, such minor children themselves qualify to receive DIC in an amount discussed below.

Further, in the following two instances, a child of a deceased qualifying veteran is entitled to DIC, in the amounts discussed below, irrespective of whether the child is living with the veteran’s surviving spouse (or whether there is a surviving spouse):

1. The child is under the age of 23 and enrolled in an approved educational program, or
2. The child is over the age of 18, and VA determined that, upon reaching the age of 18, the child was permanently incapable of self-support

These two instances mark an exception to the general principle that, when the children of the veteran are living with a surviving spouse, DIC benefits on account of the children are paid to the surviving spouse. When a child meets the criteria of the listed instances, DIC benefits are paid directly to the subject child, and a surviving spouse (if there is one) receives separately (in the words of the statute, “concurrently”) whatever amount of DIC for which the spouse otherwise qualifies.

Dependent Parents

Certain low-income parents of qualifying veterans may qualify for DIC benefits. The law provides that a parent who either:

(a) is living with the veteran’s other parent (whether or not such parents are married) and earning annually, combined with such other spouse, less than $18,087;

(b) is not married to the other parent and is earning annually less than $13,456; or

(c) remarried to someone other than the veteran’s other parent, and earning, combined with such spouse, less than $13,456 per year.

A parent who is remarried (to someone other than the veteran’s other parent) could qualify for DIC under the criteria of both (b) or (c) in the list above. In that case, the parent is entitled to receive under whichever provision would provide a greater amount of benefits (the amounts of benefits to which someone is entitled are discussed below).

When Social Security increases its benefits to account for cost of living increases, each of these income ceilings are increased by the same percentage that Social Security benefits have been increased.

Because the income ceiling to be eligible for DIC as a parent of a veteran is very low, few parents of veterans qualify for DIC benefits under this provision.

How Much DIC Benefits Do Qualifying Relatives Receive?

Note: All amounts (including base amounts and additional amounts) outlined in the section are adjusted whenever, and to the same proportion, that Social Security benefits are increased to account for cost-of-living increases.

Surviving Spouse

A surviving spouse of a veteran who died from 1993 onward is entitled to receive $1,154 monthly in DIC as of the time of this publication. (The law provides for a different amount of DIC in the case of a veteran who died before 1993. The details of such a case are beyond the scope of this article.) The spouse will qualify for additional DIC under certain circumstances as follows.

1. If the surviving spouse has one or more qualifying children of the veteran living with him/her, the spouse receives $286 each month in additional DIC for each such child.
2. If the surviving spouse has one or more child(ren) under the age of 18 (who are not the child(ren) of the deceased veteran) living with him/her, the surviving spouse receives an additional $250 per month per child in DIC until the earlier of the following occur: 1) two years after the surviving spouse became eligible to receive DIC; and 2) the child in question reaches age 18.
3. If the surviving spouse is either living in a nursing home or is blind, the spouse receives an additional $286 each month.
4. If the surviving spouse lives at home and is permanently homebound due to a disability, the spouse receives an additional $153 each month.

Child

When there is no surviving spouse, if a veteran has one qualifying child under the age of 18, that child is entitled to $488 in DIC. If there are more than one such children, such children collectively, and share in equal portions thereof, the following respective amounts: if there are two children- $701 ($350.50 per child); if there are three children- $915 ($305.00 per child); if there are more than three children, the children receive collectively, and share equally among them, $915 plus an additional $174 for each child above three children.

Parent

A qualifying parent of a veteran receives DIC in one of the following amounts (which, as explained earlier, are adjusted periodically to account for changes in the cost of living) per month:

1. If there is only one living parent of the veteran- $569.
2. If both parents are alive, but are not living together, each such parent receives $412.
3. If the parents are living together, each parent receives $387.
4. If a parent is not married to the other parent, but is remarried and living with the spouse to whom (s)he remarried, such parent receives $387.
5. A parent who is either blind or a patient in a nursing home receives an additional $308 per month in DIC.
6. A parent who meets the criteria of both a) and d) on this list will qualify to receive whichever criteria result in a greater amount of benefits.

However, a parent’s benefits may be reduced based on the extent of such parent’s income (as explained earlier, parents earning in excess of certain thresholds do not qualify for DIC as dependent parents). One applying for or receiving DIC as a dependent parent must file an annual financial report with VA detailing all of the parent’s income. The parent must also notify whenever that parent undergoes a material change with respect to income.

What Procedures Must Be Followed to Apply for, or to Continue to Receive, DIC?

To apply for DIC, a relative of a veteran must complete the pertinent form, either 21P-534EZ or 21P-535 (the correct form depends on the applicant’s relationship to the veteran), and send the form and supporting documents to the applicable office of VA. The applicable form contains instructions for the completion and filing of the form and supporting documents, including a section entitled “Evidence Tables” detailing the nature of the evidence required, depending on the particulars of the claim. Applicants are encouraged to file claims as a FDC (fully developed claim), which they can do by filing the form together with all required (as set forth on p. 1 of the form instructions) medical and military records. (Under certain circumstances, an applicant filing a FDC must also file an additional form.) Once one has applied for DIC, it typically takes several years for VA to process the claim. The delay is larely due to VA requesting supporting documentation (e.g,. regarding the veteran’s medical or employment history) and awaiting such supporting documentation from the applicant and/or other sources. By filing a FDC with all necessary supporting documents, the applicant is likely to hear back from VA much sooner.

In reviewing an application for DIC, the VA will seek to verify, based on the documentation submitted, the veteran’s military status (including, if applicable, the date and circumstances of discharge), the applicant’s relationship to the veteran, the nature and duration of the veteran’s disability, and the connection of such disability to the veteran’s death. When a claim depends on the applicant’s status (e.g., a child enrolled in a program of study or permanently incapable of self-support, a spouse or parent who is disabled), the VA will also seek to verify such details. In some instances, VA may have reviewed some of the issues pertaining to a DIC claim when the veteran applied for disability benefits. In such cases, the VA’s prior unfavorable determination of an issue will be binding if the applicant files under Section 1318 (see the section above entitled “Which Veterans Qualify their Relatives for DIC?”), but will not be binding if the applicant files under Section 1310.

If the VA regional office denies an application for DIC, the applicant can appeal the decision under various appeal lane options under the AMA, to include to the Board of Veterans Appeals, a different division within the VA who will review the claim. If an applicant disagrees with a decision of the Board of Veterans Appeals, the applicant can appeal such decision in the United States Court of Appeals for Veterans Claims, a federal court (created, as its name implies, to handle exclusively cases involving claims for veterans benefits) independent of the VA. Further appellate review may be available in higher federal appeals courts.

If you have been denied DIC benefits, it is recommended that you retain an experienced veterans disability attorney to help you with an appeal. Often, winning these cases comes down to obtaining the right evidence, which is hard to do without the assistance of an experienced lawyer.

If you would like to discuss a recent denial of DIC benefits, please contact our experienced attorneys at 888.878.9350 or info@veteransdisabilityinfo.com.