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M21-1, Part III, Subpart v, Chapter 1, Section G – Presumption of Death

Overview


In This Section

This section contains the following topics:

1.  General Principles to Consider


Change Date

September 14, 2018

III.v.1.G.1.a.  General Principles to Consider When Determining Whether a Presumption of Death May Be Established

The table below describes the general principles that must be considered when determining whether a presumption of death may be established under 38 CFR 3.212.
Note:  The force and applicability of the principles is governed largely by the circumstances of the particular case.
Principle
Description
unexplained absence
The evidence of record does not cite a reason for the individual’s absence.
absence from last known residence
For a period of at least seven years, the individual has been continuously absent, without explanation, from his/her last known residence, which is the place
  • with which the individual would ordinarily maintain communications, or
  • to which he/she would return if alive.
Note:  A presumption of death on this basis does not apply if it is improbable the individual, if living, would communicate with or return to his/her last known residence.
continuous absence
The continuous absence of an individual, rather than his/her departure alone, must be unexplained.  Such a determination requires consideration of the habits and attachments that normally control the conduct of the individual.
Generally, a continuous lack of communication is not a basis for presuming death in the following types of cases:
  • the individual
    • was a fugitive from justice
    • is in serious domestic or financial difficulties, or
    • was estranged from his/her spouse and/or family, or
  • the individual’s home life was such that it indicates willful desertion.
search for the missing individual
Evidence of searches conducted by, or on behalf of, the following persons to locate the missing individual is necessary in most cases:
Rationale:  Failure to make inquiries of all reasonable sources might indicate the lack of interest of the persons named in the preceding paragraph to the extent that it raises the inference that the missing individual was also disinterested and, in all probability, would not communicate with them.
court decisions
The laws of the State in which a missing individual resided are not controlling when determining whether a presumption of death may be established.  Nevertheless, a declaration of death by a court of competent jurisdiction, as well as the available evidence that was before the court, is relevant if the court’s decision was substantially based on the principles discussed in this table.
Important:  In all cases in which a declaration of death is made by a court, obtain
  • the decree or certified copy of the decree, and
  • any available evidence of the facts upon which the court made its decision.
life expectancy
It is not necessary to show that the missing individual, if alive, would have attained or exceeded the average life expectancy.
cause of death
Although a finding of the fact of death can be made under38 CFR 3.211(f) or presumed under 38 CFR 3.212, there is no specific provision for presuming the cause of death.
If an established service-connected disability may reasonably be accepted as a principal or contributory cause of death due to its type and severity, refer the case to Director, Compensation Service (211B), for an advisory opinion.
Reference:  For more information about requesting an advisory opinion, see M21-1, Part III, Subpart vi, 1.A.1 and 2.
date of presumed death
The date of presumed death is the end of the seven-year period following the date a missing individual was last known to be alive.
Reference:  For information on the effective date for awards of survivors benefits, see M21-1, Part III, Subpart v, 1.G.3.d.

2.  Determining Whether a Presumption of Death May Be Established


Introduction

This topic contains instructions for determining whether a presumption of death may be established, including the actions to take

Change Date

September 14, 2018

III.v.1.G.2.a.  Actions to Take Seven Years After a Veteran’s Disappearance

Follow the steps in the table below after the diary referenced in M21-1, Part III, Subpart vi, 8.3.a, expires (seven years after the date of a Veteran’s disappearance).
If VA is …
Then take the actions described in …
paying benefits to a dependent under 38 CFR 3.656
not paying benefits to a dependent under 38 CFR 3.656
Important:  Do not interrupt the payment of insurance premiums (referenced in  M21-1, Part III, Subpart vi, 8.1.b) or benefits under 38 CFR 3.656 unless instructed to do so in the procedure described in M21-1, Part III, Subpart v, 1.G.2.b or c.
Reference:  For more information about the payment of benefits following a Veteran’s disappearance, see  M21-1, Part III, Subpart vi, 8.1-4.

III.v.1.G.2.b.  Actions to Take When VA Is Paying Benefits to a Dependent Under 38 CFR 3.656

Follow the steps in the table below if VA is paying benefits to a dependent under 38 CFR 3.656 at least seven years after the Veteran’s disappearance.
Step
Action
1
Does an explanation exist for the Veteran’s absence?
  • If yes, go to the next step.
  • If no, go to Step 6.
Note:  Claims processors may conclude an explanation for a Veteran’s absence exists even though there is no evidence the Veteran is still alive.
2
Determine whether all of the following conditions are evident:
  • The Veteran failed to claim benefits to which he/she is likely entitled.
  • The Veteran’s age, were he/she alive, exceeds average life expectancy (at birth, based on the Veteran’s gender) by at least 10 years.
  • No evidence that the Veteran is still living exists.
3
Are all of the conditions described in Step 2 evident?
  • If yes, go to Step 16.
  • If no, go to the next step.
4
  • Prepare an administrative decision in accordance with instructions in M21-1, Part III, Subpart v, 1.A.3.
  • Proceed to the next step following approval of the administrative decision.
5
Of the conditions described in Step 2, is the second one (the Veteran’s age, were he/she alive) the only condition that is not evident?
  • If yes,
    • establish a diary that will expire when the Veteran’s age, were he/she alive, exceeds average life expectancy (at birth, based on the Veteran’s gender) by 10 years, and
    • take no further action until the diary expires.
  • If no, take no further action.
6
  • Send three VA Forms 21P-1775, Statement of Disappearance, to the dependent for completion within 60 days by each of the following:
    • the dependent
    • the Veteran’s last employer, and
    • a disinterested person who knew the Veteran and the facts surrounding his/her disappearance.
  • Inform the dependent that
    • completion of the forms is required to determine whether he/she remains entitled to VA benefits, and
    • VA will discontinue the payment of benefits if it does not receive all three forms within 60 days.
7
Within the 60-day period referenced in the preceding step, did VA receive VA Form 21P-1775 from each of the three individuals to whom the form was sent for completion?
  • If yes, go to Step 12 after
    • completing any additional development that is necessary to  determine whether an explanation for the Veteran’s absence exists, and
    • requesting and reviewing the results of a field examination, if a field examination is necessary and appropriate.
  • If no, go to the next step.
Important:  If VA received VA Form 21P-1775 from a dependent
  • prior to March 24, 2015, treat it as an informal claim for survivors benefits, or
  • on or after March 24, 2015, treat it as a request for an application for survivors benefits.
Reference:  For more information on informal claims and requests for an application, see M21-1, Part III, Subpart ii, 2.C.
8
Prepare and send a notice of proposed adverse action that contains the elements set forth in M21-1, Part I, 2.B.2.
9
Did the dependent submit all three of the forms referenced in Step 6 within 65 days of the notice referenced in Step 8?
  • If yes, go to Step 12 after
    • completing any additional development that is necessary to  determine whether an explanation for the Veteran’s absence exists, and
    • requesting and reviewing the results of a field examination, if a field examination is necessary and appropriate.
  • If no, go to the next step.
Note:  Follow the instructions in M21-1, Part I, 2.C.3, if the dependent requests a hearing.
10
Discontinue the Veteran’s award (including the payment of insurance premiums and benefits under 38 CFR 3.656) effective the date in the LAST PAID DATE field on the AWARD INFORMATION tab in Share.
11
  • Notify the dependent of the action taken.
  • Disregard the remaining steps in this table.
12
Does an explanation for the Veteran’s absence now exist?
  • If yes, go to the next step.
  • If no, go to Step 16.
Note:  Claims processors may conclude an explanation for a Veteran’s absence exists even though there is no evidence the Veteran is still alive.
13
Are all of the conditions described in Step 2 evident?
  • If yes, go to Step 16.
  • If no, go to the next step.
14
  • Prepare an administrative decision in accordance with instructions in M21-1, Part III, Subpart v, 1.A.3.
  • Proceed to the next step following approval of the administrative decision.
15
  • Notify the dependent that his/her benefits will remain unchanged.
  • Go to Step 5.
16
Notes:
  • A Veterans Service Center Manager (VSCM) or Pension Management Center Manager (PMCM) must approve administrative decisions that establish a presumption of death.
  • VSCMs and PMCMs may delegate the authority to approve the referenced administrative decision to a supervisor not lower than a coach.
17
  • Prepare and send a notice of proposed adverse action that contains the elements set forth in M21-1, Part I, 2.B.2.
  • Go to the next step unless the dependent submits evidence within 65 days that shows VA should continue paying benefits to him/her under 38 CFR 3.656.
Note:  Follow the instructions in M21-1, Part I, 2.C.3, if the dependent requests a hearing.
18
Discontinue the Veteran’s award (including the payment of insurance premiums and benefits to the dependent) effective the date in the LAST PAID DATE field on the AWARD INFORMATION tab in Share.
19
Notify the dependent of the action taken.
Note:  In the decision notice, invite the dependent to submit a claim for survivors benefits by completing and returning VA Form 21P-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits,unless the dependent has already submitted the form.
20
Invite other eligible survivors to submit VA Form 21P-534EZ if their names and addresses are of record.
21
E-mail a copy of the administrative decision to Director, Compensation Service (211B), for administrative review.
22
Was VA deducting benefits from the Veteran’s award for the payment of insurance premiums?
  • If yes, send a copy of the administrative decision to Insurance Service.
  • If no, take no further action.
References:  For more information on

III.v.1.G.2.c.  Actions to Take When VA Is Not Paying Benefits to a Dependent Under 38 CFR 3.656

Follow the instructions in the table below if
  • at least seven years have passed since a Veteran’s disappearance,
  • VA is still paying the insurance premiums referenced in M21-1, Part III, Subpart vi, 8.1.b, and
  • VA is not paying benefits to a dependent under 38 CFR 3.656.
Step
Action
1
Does an explanation exist for the Veteran’s absence?
  • If yes, go to the next step.
  • If no, go to Step 6.
Note:  Claims processors may conclude an explanation for a Veteran’s absence exists even though there is no evidence the Veteran is still alive.
2
Determine whether all of the following conditions are evident:
  • The Veteran failed to claim benefits to which he/she is likely entitled.
  • The Veteran’s age, were he/she alive, exceeds average life expectancy (at birth, based on the Veteran’s gender) by at least 10 years.
  • No evidence that the Veteran is still living exists.
3
Are all of the conditions described in the preceding step evident?
  • If yes, go to Step 11.
  • If no, go to the next step.
4
  • Prepare an administrative decision in accordance with instructions in M21-1, Part III, Subpart v, 1.A.3.
  • Proceed to the next step following approval of the administrative decision.
5
Of the conditions described in Step 2, is the second one (the Veteran’s age, were he/she alive) the only condition that is not evident?
  • If yes,
    • establish a diary that will expire when the Veteran’s age, were he/she alive, exceeds average life expectancy (at birth, based on the Veteran’s gender) by 10 years, and
    • take no further action until the diary expires.
  • If no, take no further action.
6
  • Send three VA Forms 21P-1775 to the next of kin or insurance beneficiary for completion within 60 days by each of the following:
    • the next of kin or insurance beneficiary
    • the Veteran’s last employer, and
    • a disinterested person who knew the Veteran and the facts surrounding his/her disappearance.
  • Inform the next of kin or insurance beneficiary that
    • completion of the forms is required to determine whether VA should continue paying the Veteran’s insurance premiums, and
    • VA will discontinue payment of the premiums if it does not receive all three forms within 60 days.
7
Within the 60-day period referenced in the preceding step, did VA receive VA Form 21P-1775 from each of the three individuals to whom the form was sent for completion?
  • If yes, go to Step 9 after
    • completing any additional development that is necessary to  determine whether an explanation for the Veteran’s absence exists, and
    • requesting and reviewing the results of a field examination, if a field examination is necessary and appropriate.
  • If no, go to the next step.
Important:  If VA received VA Form 21P-1775 from the next of kin or insurance beneficiary
  • prior to March 24, 2015, treat it as an informal claim for survivors benefits, or
  • on or after March 24, 2015, treat it as a request for an application for survivors benefits.
References:  For more information on
8
  • Discontinue the Veteran’s award, to include the payment of insurance premiums, effective the date in the LAST PAID DATE field on the AWARD INFORMATION tab in Share.
  • Disregard the remaining steps in this table.
9
Does an explanation for the Veteran’s absence now exist?
  • If yes, go to the next step.
  • If no, go to Step 11.
Note:  Claims processors may conclude an explanation for a Veteran’s absence exists even though there is no evidence the Veteran is still alive.
10
Are all of the conditions described in Step 2 evident?
  • If yes, go to Step 11.
  • If no, go to Step 4.
11
Notes:
  • A VSCM or PMCM must approve administrative decisions that establish a presumption of death.
  • VSCMs and PMCMs may delegate the authority to approve the referenced administrative decision to a supervisor not lower than a coach.
12
Treat the administrative decision as a first notice of death (NOD).
Reference:  For information on processing a first NOD, see M21-1, Part III, Subpart ii, 8.
13
Invite eligible survivors to submit VA Form 21P-534EZ if their names and addresses are of record.
14
E-mail a copy of the administrative decision to Director, Compensation Service (211B), for administrative review.
15
Send a copy of the administrative decision to Insurance Service.

3.  Handling Claims for Survivors Benefits


Introduction

This topic contains information on handling claims for survivors benefits, including

Change Date

September 14, 2018

III.v.1.G.3.a.  Circumstances Under Which It Is Appropriate to Deny a Claim Without Undertaking Development

Deny a claim for survivors benefits without undertaking development to establish a presumption of death if VA would be unable to pay the claimed benefit due to, for example,
  • a legal bar, or
  • an unfavorable rating decision.
Important:  Include the following statement in the corresponding decision notice (with any appropriate modification): “This denial of your claim does not imply that the Veteran’s death has been established or can be presumed on the basis of the evidence available.

III.v.1.G.3.b.  Handling Evidence That Definitely Discloses the Veteran Is Alive

Follow the instructions in the table below if, at any stage of claims development, evidence is obtained or discovered that definitely reveals the Veteran is living or was alive at any time during the seven-year period that began when the Veteran first disappeared.
If an explanation for the Veteran’s absence …
Then …
does not exist
  • deny the claim without preparing an administrative decision
  • inform the claimant in the corresponding decision notice of the last date the individual was shown to be alive, and
  • advise the claimant that VA can disclose neither
    • the source of such information, nor
    • other information of record concerning the Veteran’s existence or whereabouts.
exists
Reference:  For more information on determining whether an explanation exists for a Veteran’s absence, see M21-1, Part III, Subpart v, 1.G.1.a.

III.v.1.G.3.c.   Determining Whether Death May Be Presumed for the Purpose of Awarding Survivors Benefits

Follow the instructions in the table below if
  • VA receives a claim for survivors benefits
  • at least seven years have passed since the Veteran’s disappearance, and
  • a denial of benefits under the provisions of M21-1, Part III, Subpart v, 1.G.3.a or b is not in order.
Important:  Disregard any of the actions described in the table below (such as the actions described in Steps 2, 9, 10, 11, 14, 15, and 16) that were previously taken in connection with the procedures outlined in M21-1, Part III, Subpart v, 1.G.2.b orc.
Step
Action
1
Does an explanation exist for the Veteran’s absence?
  • If yes, go to Step 7.
  • If no, go to the next step.
2
  • Send three VA Forms 21-1775 to the claimant for completion within 60 days by each of the following:
    • the claimant
    • the Veteran’s last employer, and
    • a disinterested person who knew the Veteran and the facts surrounding his/her disappearance.
  • Inform the claimant that completion of the forms is required to determine whether he/she is entitled to VA benefits.
3
Did VA receive forms from all three of the individuals referenced in Step 2?
  • If yes, go to Step 6.
  • If no, go to the next step.
4
Deny the claim for survivors benefits based on the fact that VA is unable to establish a presumption of death.
5
  • Notify the claimant of the decision.
  • Disregard the remaining steps in this table.
6
Does an explanation for the Veteran’s absence now exist?
  • If yes, go to the next step.
  • If no, go to Step 10.
7
Determine whether all of the following conditions are evident:
  • The Veteran has not claimed VA benefits to which he/she is likely entitled.
  • The Veteran’s age, were he/she alive, exceeds the average life expectancy (at birth, based on the Veteran’s gender) by at least 10 years.
  • No evidence that the Veteran is still living has been found after diligent search.
8
Are all of the conditions described in Step 7 evident?
  • If yes, go to Step 10.
  • If no, go to the next step.
9
  • Discontinue the Veteran’s award (including the payment of insurance premiums) effective the date in the LAST PAID DATE field on the AWARD INFORMATION tab in Share.
  • Go to Step 4.
10
Notes:
  • A VSCM or PMCM must approve administrative decisions that establish a presumption of death.
  • VSCMs and PMCMs may delegate the authority to approve the referenced administrative decision to a supervisor not lower than a coach.
11
Discontinue the Veteran’s award (including the payment of insurance premiums) effective the date in the LAST PAID DATE field on the AWARD INFORMATION tab in Share.
12
Make a determination as to the claimant’s entitlement to survivors benefits.
Reference:  For information on selecting an effective date for an award of survivors benefits to a dependent whose award VA discontinued under Step 18 of the instructions in M21-1, Part III, Subpart v, 1.G.2.b, see M21-1, Part III, Subpart v, 1.G.3.d.
13
Notify the claimant of the decision made in Step 12.
14
Invite other eligible survivors to submit VA Form 21P-534EZ if their names and addresses are of record.
15
E-mail a copy of the administrative decision referenced in Step 10 to Director, Compensation Service (211B), for administrative review.
16
Was VA deducting benefits from the Veteran’s award for the payment of insurance premiums?
  • If yes, send a copy of the administrative decision to Insurance Service.
  • If no, no further action is necessary.
Reference:  For more information about preparing decision notices, see M21-1, Part III, Subpart v, 2.B.

III.v.1.G.3.d.  Effective Dates for Awards of Survivors Benefits

Use the table below to determine the effective date of an award of survivors benefits (following the establishment of a presumption of death) to a claimant to whom VA is currently paying benefits under 38 CFR 3.656.
If …
Then make the adjustment …
an increased rate of benefits is payable
effective the date of presumed death (seven years after the date of disappearance) subject to any offset necessitated by the payment of benefits under 38 CFR 3.656.
decreased rate of benefits is payable
effective the date in the LAST PAID DATE field on the AWARD INFORMATION tab in Share.
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