M21-1, Part III, Subpart iii, Chapter 5, Section L – Adjusting Awards for Dependents

In This Section

Introduction

• up-front development for evidence/information required to establish a claimant’s relationship to his/her dependent(s)
• adding dependents following the assignment of a combined disability evaluation of at least 30 percent
• notification requirements when the Department of Veterans Affairs (VA) assigns a combined disability evaluation of at least 30 percent
• using Redesigned Automated Decision Letter (RADL) to meet notification requirements
• end product (EP) control when requesting evidence/information required to add a dependent in a decision notice, and
• Veterans with a combined disability evaluation that is less than 30 percent.

Change Date

III.iii.5.L.1.a.
Up-Front Development for Evidence/Information Required to Establish a Claimant’s Relationship to His/Her Dependent(s)

• the claimant lists one or more dependents on the application, and
• evidence/information required to establish the claimant’s relationship to the dependent(s) is not of record.

III.iii.5.L.1.b.  Adding Dependents Following the Assignment of a Combined Disability Evaluation of at Least 30 Percent

• the evidence of record indicates the Veteran has a dependent or dependents, and
• the Department of Veterans Affairs (VA) received the claim that triggered the rating decision
  • on or after March 24, 2015, and
    • one of the prescribed forms listed in M21-1, Part III, Subpart ii, 2.B.1.b, is of record, and
    • the form is less than eight years old, or
  • prior to March 24, 2015, and information required to add the dependent is
    • of record, and
    • less than eight years old.

• The clearing of an EP 130 in connection with the action described in this block is appropriate only if the EP was established to control a claim for additional compensation for a dependents or dependents in accordance with the instructions in M21-1, Part III, Subpart iii, 5.A.1.i.
• March 24, 2015, represents the date VA began requiring claimants to submit claims on a prescribed form.
• As explained in M21-1, Part III, Subpart iii, 5.A.1.f, information that is already of record regarding the status of the dependents of a Veteran in receipt of disability compensation is considered valid for the purpose of making entitlement determinations for up to eight years from the date VA received it.

III.iii.5.L.1.c.  Notification Requirements When VA Assigns a Combined Disability  Evaluation of at Least 30 Percent

• include in the corresponding decision notice the appropriate paragraphs that inform the Veteran of the dependent(s) for whom he/she is receiving additional benefits, and
• notify the Veteran of potential eligibility for additional benefits for dependents in the decision notice (by providing the appropriate hyperlink to the forms the Veteran must submit to apply) unless
  • the decision notice already includes a request for evidence/information required to add a dependent, or
  • a dependent or dependents were added to the Veteran’s award concurrent with promulgation of the rating decision that triggered the decision notice.

Important:  The policy described in this block applies even if the rating activity previously determined the Veteran was at least 30-percent disabled and is now

• increasing the evaluation of an existing disability or establishing service connection (SC) for a new disability (regardless of whether or not the combined evaluation changes)
• granting entitlement to a total disability evaluation based on individual unemployability (IU)
• granting entitlement to special monthly compensation, and/or
• establishing an earlier effective date for a combined disability evaluation of 30 percent or greater.

• M21-1, Part III, Subpart iii, 1.B.1.e and f for documenting attempts to contact a Veteran by telephone
• M21-1, Part III, Subpart iii, 5.L.1.d for using the Revised Automated Decision Letter (RADL) to provide Veterans with the notification described in this block, and
• M21-1, Part III, Subpart iii, 5.L.1.e, to determine what type of EP, if any, must remain pending to control for a response from the Veteran to the request(s) for information/evidence VA makes in the decision notice referenced in this block.

III.iii.5.L.1.d.  Using RADL to Meet Notification Requirements

• the decision notice already includes a request for evidence/information required to add a dependent, or
• VA added a dependent or dependents to the Veteran’s award concurrent with promulgation of the rating decision that triggered the decision notice.

• entitlement to additional benefits for a dependent is granted or denied, and/or
• additional evidence/information is required to grant entitlement to additional benefits for a dependent.

• M21-1, Part III, Subpart v, 2.B.4, and
• the ADL Standard Operating Procedures (SOP).

III.iii.5.L.1.e.
EP Control When Requesting Evidence/ Information Required to Add a Dependent in a Decision Notice

• a Veteran lists a dependent on his/her application for benefits
• the evidence/information required to add the dependent to the Veteran’s award is not of record, and
• a request for the missing evidence/information is included in the letter that notifies the Veteran of the outcome of a rating decision.

III.iii.5.L.1.f.  Veterans With a Combined Disability Evaluation That Is Less Than 30 Percent

Introduction

• handling responses to requests for evidence/information to add a dependent that VA receives within the one-year time limit
• effect of Sharp v. Shinseki on the assignment of effective dates
• handling responses to requests for evidence/information about a dependent that VA receives after the one-year time limit
• examples of the addition of a dependent following notification of potential entitlement
• granting entitlement from the date of a life event, the date of claim, or the date dependency arose
• example of the addition of a dependent from the date of a life event
• effective date for granting entitlement to additional compensation based on a same-sex marriage, and
• examples of the selection of an appropriate effective date for adding a same-sex spouse to a Veteran’s award.

Change Date

III.iii.5.L.2.a.  Handling Responses to Requests for Evidence/ Information to Add a Dependent That VA Receives Within the One-Year Time Limit

• effective date of the evaluation awarded in the rating decision referenced in M21-1, Part III, Subpart iii, 5.L.1.c, or
• date shown in the table below.

• The provisions of 38 CFR 3.401(b) govern the effective date of a Veteran’s entitlement to additional compensation for dependents.
• See M21-1, Part III, Subpart v, 2.A.2.b for a discussion of the difference between the effective date of entitlement and the effective date ofpayment.
• M21-1, Part III, Subpart iii, 5.L.2.g contains additional instructions for determining the proper effective date for granting entitlement to additional compensation based on a same-sex marriage.

III.iii.5.L.2.b.  Effect of Sharp v. Shinseki on the Assignment of Effective Dates

• the date the Veteran eventually responded to the request, or
• the date shown in the table in M21-1, Part III, Subpart iii, 5.L.2.a (if the Veteran notified VA within one year of that date).

• pension awards, or
• subsequent rating decisions that only
  • confirm and continue (a) current disability evaluation(s), or
  • deny SC.

III.iii.5.L.2.c.  Handling Responses to Requests for Evidence/ Information About a Dependent That VA Receives After the One-Year Time Limit

• VA has notified the Veteran of a subsequent rating decision within the past year, as discussed in M21-1, Part III, Subpart iii, 5.L.1.c, or
• the Veteran meets the requirements in M21-1, Part III, Subpart iii, 5.L.2.e, for adding a dependent effective the date shown in the table inM21-1, Part III, Subpart iii, 5.L.2.a.

III.iii.5.L.2.d.  Examples:  Addition of a Dependent Following Notification of Potential Entitlement

III.iii.5.L.2.e.  Granting Entitlement Effective the Date of a Life Event, the Date of Claim, or the Date Dependency Arose

III.iii.5.L.2.f.  Example:  Addition of a Dependent From the Date of a Life Event

• VA assigns a combined disability evaluation of 30 percent to a Veteran effective April 21, 2010, and notifies her of potential entitlement to additional compensation for dependents on May 1, 2010.
• On August 12, 2011, VA receives a completed VA Form 21-686c showing the Veteran gave birth to a baby girl on December 23, 2010.

III.iii.5.L.2.g. Effective Date for Granting Entitlement to Additional Compensation Based on a Same-Sex Marriage

• at the time of the marriage, or
• when the right to VA benefits accrued (which means the date the claimant became eligible for VA benefits or the date VA received the claim for VA benefits).

• license a marriage between two individuals of the same sex, and
• recognize a marriage between two individuals of the same sex when their marriage was lawfully licensed and performed out-of-state.

• The policies expressed in the table above apply regardless of whether or not the State in which the Veteran resided at the time of marriage, or at the time entitlement to additional compensation for a spouse arose, recognized same-sex marriages prior to the Supreme Court ruling.
• If VA adds a same-sex spouse to a Veteran’s award effective the date of entitlement to a disability evaluation of at least 30 percent, then VA subsequently assigns a disability evaluation of at least 30 percent from an earlier effective date, add the spouse to the Veteran’s award effective thelater of the following dates, regardless of whether that date precedes September 4, 2013:
  • the new effective date of the disability evaluation of at least 30 percent, or
  • the date of marriage.

• For an example of the policy expressed in the preceding paragraph, see the sixth scenario discussed in M21-1, Part III, Subpart iii, 5.L.2.h.
• For more information about VA’s recognition of same-sex marriages, seeVBA Letter 20-15-16, Administration of Same-Sex Spousal Benefits.

III.iii.5.L.2.h.  Examples:  Selecting an Appropriate Effective Date for Adding a Same-Sex Spouse to a Veteran’s Award

Introduction

• providing notice of an award adjustment
• effect of separation or estrangement
• payment of compensation while a reduction is under consideration
• handling a change in the status of a parent or schoolchild
• requirement to notify a child’s custodian, and
• example of adjustment of a child’s award and notification.

Change Date

III.iii.5.L.3.a.  Providing Notice of an Award Adjustment

• If a third party notifies VA of a beneficiary’s loss of a dependent, provide a notice of proposed adverse action to the beneficiary before discontinuing the additional benefits.
• Notify Vocational Rehabilitation and Employment (VR&E) of the change if the beneficiary is a Veteran receiving training under 38 U.S.C. Chapter 31.
  • E-mail notice to the VR&E mailbox of the RO that has custody of the Veteran’s Counseling/Evaluation/Rehabilitation folder.
  • Include in the e-mail
    • the Veteran’s name and claim number
    • the name of the dependent whose status has changed
    • an explanation of the reason for the change in status (such as death or divorce)
    • the date of the event that resulted in the change in status, and
    • the effective date of the corresponding award adjustment.
  • Upload a copy of the e-mail to the Veteran’s electronic claims folder.

• providing notice of proposed adverse action, see M21-1, Part I, 2.A and B
• making award adjustments in the
  • Veterans Service Network (VETSNET), see the VETSNET Awards User Guide, or
  • Veterans Benefits Management System (VBMS), see the VBMS-Awards User Guide, and
• notifying a beneficiary of an adjustment to his/her award, see M21-1, Part III, Subpart v, 2.B.

III.iii.5.L.3.b.  Effect of Separation or Estrangement

• Separation and estrangement are both factors that affect entitlement to pension.
• Although 38 CFR 3.204(a)(1) requires a beneficiary to provide the address of a child that does not live with the beneficiary, there is no regulatory requirement that a Veteran provide the address of a spouse from whom the Veteran is separated or estranged.

III.iii.5.L.3.c.  Payment of Compensation While a Reduction Is Under Consideration

• severance of SC under 38 CFR 3.105(d), or
• a proposed reduction under 38 CFR 3.105(e).

III.iii.5.L.3.d.  Handling a Change in the Status of a Parent or Schoolchild

III.iii.5.L.3.e.  Requirement to Notify a Child’s Custodian

III.iii.5.L.3.f.  Example:  Adjustment of a Child’s Award and Notification

• A deceased Veteran’s first spouse reports that 16-year-old Lisa’s marriage has been annulled and asks that Lisa’s Dependency and Indemnity Compensation (DIC) payments as a child of the Veteran be reinstated.
• Because of the annulment, payment to the child of the Veteran’s second marriage (Robert – Payee 12) must be reduced to the rate payable for one of two children.

• Provide a notice of proposed adverse action to Robert’s custodian.
• Continue payments at the higher rate until the first of the month following the month in which the due process period ends.  (The due process period ends 60 days after the date of the notice of proposed adverse action.)
• Retroactively reduce Robert’s award and create an overpayment at the end of the 65-day control period.

• If Lisa’s marriage is terminated by death or divorce, benefits are no longer payable for her.  Under Public Law 101-508, the marriage of a child is a permanent bar against receiving benefits.  This provision does not apply if the marriage is annulled or declared void by a court of competent jurisdiction.
• A notice of proposed adverse action is not required before making a retroactive payment of DIC to an additional child based on school attendance.
  • The child receives the “available difference” between the total payable for all children and the amount already paid for the existing children for the retroactive period.
  • The additional child is paid the full child’s rate from the first of the month following the month for which VA last paid the beneficiary.

Introduction

• when a notice of proposed adverse action to remove a dependent is not required
• when the end-of-month rule applies to the removal of a dependent from a beneficiary’s award
• when the end-of-month rule does not apply to the removal of a dependent from a beneficiary’s award
• removing a child from a beneficiary’s award based on the results of a paternity test
• removing a dependent from a beneficiary’s award
• action to take if a beneficiary fails to provide information required to remove a dependent
• information that is unique to changes in the status of children in receipt of DIC
• award adjustment upon the death or marriage of a child
• application of 38 CFR 3.551, and
• handling a renouncement of the right to additional benefits for a dependent.

Change Date

III.iii.5.L.4.a.  When a Notice of Proposed Adverse Action to Remove a Dependent Is Not Required

III.iii.5.L.4.b.  When the End-of-Month Rule Applies to the Removal of a Dependent From a Beneficiary’s Award

• spouse because of
  • divorce
  • a voided or annulled marriage, or
  • death, or
• child because of
  • marriage
  • adoption
  • death, or
  • discontinuance of school attendance.

• The last day of the month in which the event took place that resulted in the loss of a dependent represents the last date benefits are payable to or for the dependent.  For award-processing purposes, the first day of the following month represents the first date of non-payment or reduced payment.
• The term “running award,” used in 38 CFR 3.660(a)(2), does not apply to reductions for loss of dependents, as described in 38 CFR 3.500.
• The requirement to remove a child that was given up for adoption from an award of disability compensation went into effect on September 14, 2015. Removal of an adopted child from an award of disability compensation from an effective date earlier than September 14, 2015, would be improper.

• determining the effective date for an award adjustment based on a voided marriage, see M21-1, Part III, Subpart iii, 5.B.6.e, and
• handling cases in which a Veteran gives up his/her child for adoption, seeM21-1, Part III, Subpart iii, 5.G.5.

III.iii.5.L.4.c.  When the End-of-Month Rule Does Not Apply to the Removal of a Dependent From a Beneficiary’s Award

III.iii.5.L.4.d.  Removing a Child From a Beneficiary’s Award Based on the Results of a Paternity Test

• the beneficiary’s statement regarding the results and date of the paternity test raises a question of its validity
• the beneficiary’s statement conflicts with other evidence of record, or
• there is a reasonable indication of fraud or misrepresentation.

• establishing a stepchild as a child for VA purposes, see M21-1, Part III, Subpart iii, 5.G.6, or
• handling notice from a beneficiary that will result in removal of a dependent from the beneficiary’s award, see M21-1, Part III, Subpart iii, 5.A.4.e.

III.iii.5.L.4.e.  Removing a Dependent From a Beneficiary’s Award

• VETSNET, see the VETNET Awards User Guide, or
• VBMS, see the VBMS-Awards User Guide.

III.iii.5.L.4.f.  Action to Take if a Beneficiary Fails to Provide Information Required to Remove a Dependent

• the date (month, day, and year) of the event (such as death or divorce) that necessitates removal of the dependent from the beneficiary’s award, and
• the location (city and state, or city and country, if the city is outside the U.S.) of the same event.

• If a beneficiary provides only the name of the city in which an event took place, VA does not require the beneficiary to provide the name of the State, as long as the city is well-known (such as Atlanta or Chicago).
• Follow the instructions in M21-1, Part III, Subpart iii, 1.B.1.e for documenting attempts to contact a Veteran by telephone.

III.iii.5.L.4.g.  Information That Is Unique to Changes in the Status of Children in Receipt of DIC

III.iii.5.L.4.h.  Award Adjustment Upon the Death or Marriage of a Child

III.iii.5.L.4.i.  Application of  38 CFR 3.551

III.iii.5.L.4.j.  Handling a Renouncement of the Right to Additional Benefits for a Dependent

• the duty of claimants to report familial relationships and family composition, see M21-1, Part III, Subpart iii, 5.A.1.m, or
• renouncements of the right to a VA benefit, see M21-1, Part III, Sub