M21-1, Part III, Subpart v, Chapter 4, Section E – Children With Two Veteran-Parents

In This Section

Introduction

• definition of parents in the same parental line
• concurrent payment of separate disability and/or survivors benefits to or for a child with two Veteran-parents, and
• concurrent payment of Dependents’ Educational Assistance (DEA) and disability and/or survivors benefits to or for a child with two Veteran-parents.

Change Date

III.v.4.E.1.a.  Definition:  Parents in the Same Parental Line

• biological parents
• adoptive parents, and
• stepparents.

• A Veteran-father and a Veteran-mother are not in the same parental line.
• Two female Veterans that are married to one another are not in the same parental line.

III.v.4.E.1.b.  Concurrent Payment of Separate Disability and/or Survivors Benefits to or for a Child With Two Veteran-Parents

• If a child is entitled to more than one survivors benefit, but concurrent payment is prohibited, the child may reelect between such benefits without limitation.
• See M21-1, Part III, Subpart v, 4.E.1.c if a child with two Veteran-parents is entitled to Dependents’ Educational Assistance (DEA).

III.v.4.E.1.c.  Concurrent Payment of DEA and Disability and/or Survivors Benefits to or for a Child With Two Veteran-Parents

• DEA and restorative training under 38 U.S.C. Chapter 35, and
• the Marine Gunnery Sergeant David Fry Scholarship under 38 U.S.C. 3311.

• VA must stop the payment of disability and/or survivors benefits, and
• the child may never reelect disability and/or survivors benefits.

• the policies discussed in this block, see
  • 38 CFR 21.3023, and
  • 38 U.S.C. 3562
• determining whether a child is incapable of self-support, see M21-1, Part III, Subpart iii, 7
• DEA, see M21-1, Part III, Subpart iii, 6.C, and
• the Marine Gunnery Sergeant David Fry Scholarship, see M21-1, Part III, Subpart iii, 6.B.2.

Introduction

• acceptable means of electing one benefit over another
• notice of the right to elect one benefit over another
• effective date of payment of an elected benefit that is
  • greater than the prior benefit, and
  • less than the prior benefit
• processing a child’s election of benefits under a different Veteran-parent in the same parental line, and
• example of how to process a child’s election of benefits under a different Veteran-parent in the same parental line.

Change Date

III.v.4.E.2.a.  Acceptable Means of Electing One Benefit Over Another

• the child, if the child is eligible to receive benefit payments directly, or
• a parent, guardian, or custodian (whichever applies), if the child is
  • a minor, or
  • incompetent for VA purposes.

III.v.4.E.2.b.  Notice of the Right to Elect One Benefit Over Another

• of the right of election (and reelection, if applicable), and
• the rates payable under each benefit to which eligibility exists.

• award the benefit that is the most advantageous without waiting for a response to the notice referenced in the first paragraph of this block, and
• inform the child (or his/her parent, guardian, or custodian, whichever applies) in the decision notice that
  • VA has awarded the greater benefit, and
  • the right to elect the other benefit still exists.

III.v.4.E.2.c.  Effective Date of Payment of an Elected Benefit That Is Greater Than the Prior Benefit

III.v.4.E.2.d.  Effective Date of Payment of an Elected Benefit That Is Less Than the Prior Benefit

III.v.4.E.2.e.  Processing a Child’s Election of Benefits Under a Different Veteran-Parent in the Same Parental Line

• VA is paying survivors benefits to or for a child based on the service of one of two deceased Veteran-parents in the same parental line, and
• the child (or his/her parent, guardian, or custodian, whichever applies) elects to receive survivors benefits based on the service of the otherVeteran-parent.

• the policies discussed in this block, see
  • 38 CFR 3.659, and
  • 38 CFR 3.503(a)(7), and
• making award adjustments in
  • VETSNET, see the VETSNET Award User Guide, or
  • VBMS-A, see the VBMS-Awards User Guide.

III.v.4.E.2.f.  Example:  Processing a Child’s Election of Benefits Under a Different Veteran-Parent in the Same Parental Line

• Jim is the sole survivor of Veteran A, who died many years ago.
• Jim is currently receiving survivors benefits based on Veteran A’s service.
• Jim is also a stepchild of Veteran B, who died March 14, 2014.
• On May 15, 2014, VA notified Jim of his right to elect survivors benefits based on the service of Veteran B.
• VA received Jim’s claim for an election of benefits under Veteran B on August 13, 2015.
• As of August 13, 2015, VA was paying survivors benefits to Jim in the amount of $150 per month.
• The amount of benefits to which Jim is entitled under Veteran B is $530.00 per month as of August 13, 2015.
• The regional office processes Jim’s election on October 5, 2015.

• Discontinue Jim’s current award effective October 1, 2015.
• Award benefits to Jim under Veteran B in the amount of $380 per month ($530.00 – $150.00) from September 1, 2015.  Increase the award to $530.00 per month effective October 1, 2015.

Introduction

• general information on the effect of a child’s election on other beneficiaries, and
• effect of a child’s election on
  • a surviving spouse’s entitlement, and
  • another child’s or other children’s entitlement.

Change Date

III.v.4.E.3.a.  General Information on the Effect of a Child’s Election on Other Beneficiaries

• a surviving spouse’s entitlement, see M21-1, Part III, Subpart v, 4.E.3.b, or
• other children’s entitlement, see M21-1, Part III, Subpart v, 4.E.3.c.

III.v.4.E.3.b.  Effect of a Child’s Election on a Surviving Spouse’s Entitlement

• adjusting a surviving spouse’s award when a child elects benefits under a different Veteran-parent, see M21-1, Part III, Subpart v, 4.E.4.a and b, or
• the policy discussed in this block, see 38 CFR 3.703(c).

III.v.4.E.3.c.  Effect of a Child’s Election on Another Child’s or Other Children’s Entitlement

Note:  If the benefit VA was paying the child prior to his/her election was DIC, and VA was paying DIC to a surviving spouse based on the same Veteran’s death, the child’s election will have no effect on other children that are

• over the age of 18, and
• also receiving DIC based on the Veteran’s death.

Reference:  For information about making award adjustments based on the policy expressed in this block, see M21-1, Part III, Subpart v, 4.E.4.c.

Introduction

• reducing or discontinuing a surviving spouse’s award because of a child’s election of benefits under a different Veteran-parent
• increasing a surviving spouse’s award because of a child’s election of benefits under a different Veteran-parent
• increasing the awards of other children because of a child’s election of benefits under a different Veteran-parent, and
• example of award adjustments involving a surviving spouse and a child who elected benefits under a different Veteran-parent.

Change Date

III.v.4.E.4.a.  Reducing or Discontinuing a Surviving Spouse’s Award Because of a Child’s Election of Benefits Under a Different Veteran-Parent

• reduction in the benefits VA is paying to a surviving spouse if VA is paying the surviving spouse additional benefits for the child, or
• discontinuance of benefits if
  • VA is paying Survivors Pension to a surviving spouse, and
  • removal of the child from the surviving spouse’s award reduces the maximum annual pension rate to an amount that is less than the surviving spouse’s countable income.

III.v.4.E.4.b.  Increasing a Surviving Spouse’s Award Because of a Child’s Election of Benefits Under a Different Veteran-Parent

• a child on the surviving spouse’s award elects to receive benefits based on the service of a different Veteran-parent in the same parental line, and
• the child is receiving an apportionment from the surviving spouse’s award that is greater than the additional benefits to which the surviving spouse is entitled for the child.

III.v.4.E.4.c.  Increasing the Awards of Other Children Because of a Child’s Election of Benefits Under a Different Veteran-Parent

III.v.4.E.4.d.  Example:  Award Adjustments Involving a Surviving Spouse and a Child Who Elected Benefits Under a Different Veteran-Parent

• A Veteran died on April 21, 2010, leaving behind a spouse and two biological children, Jane and David.
• The surviving spouse and children are entitled to DIC because the Veteran’s death was service-connected (SC).
• Jane is in the custody of her stepfather, who is also a Veteran.  She receives an apportionment of DIC from the surviving spouse.

• Jane’s stepfather dies of an SC death on January 2, 2013, leaving Jane as the sole survivor.
• As of January 2, 2013, Jane’s apportionment was $301.00 per month.
• DIC in the amount of $513.00 is payable to Jane based on her stepfather’s death.
• On February 20, 2013, VA receives from Jane a claim for entitlement to DIC based on her stepfather’s death.
• VA takes award action based on Jane’s election of benefits under her stepfather on March 5, 2013.

• VA discontinues Jane’s apportionment (and amends the surviving spouse’s award accordingly), effective March 1, 2013.
• VA awards DIC to Jane (based on the death of her stepfather) in the amount of $212.00 per month ($513.00 minus $301.00) effective February 1, 2013.
• VA increases the monthly rate of DIC to $513.00, effective March 1, 2013.