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M21-1, Part III, Subpart v, Chapter 4, Section F – Miscellaneous Election Issues

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2
3
4
5

1.  Surviving Spouse’s Election of Survivors Pension


Introduction

This topic contains information on a surviving spouse electing Survivors Pension in lieu of Dependency and Indemnity Compensation (DIC), including

Change Date

May 1, 2015

III.v.4.F.1.a.  Surviving Spouse’s Eligibility to Elect Survivors Pension if Also Eligible for DIC

Public Law (PL) 103-446, enacted on November 2, 1994, amended 38 U.S.C. 1317 to permit a surviving spouse who is eligible for Dependency and Indemnity Compensation (DIC) to elect Survivors Pension.  This provision became effective November 2, 1994.
Generally, it is not to a surviving spouse’s advantage to elect Survivors Pension in lieu of DIC.
Note:  Prior to PL 103-44638 U.S.C. 1317 prohibited a surviving spouse eligible for DIC from electing Survivors Pension.

III.v.4.F.1.b.  Special Provisions for Surviving Spouse in Medicaid Nursing Home

If a surviving spouse is eligible for DIC and in a Medicaid-covered nursing home, he/she may wish to elect death pension to take advantage of the $90 Medicaid provisions of 38 U.S.C. 5503(f).
References:  For more information on

2.  Surviving Spouse’s Payment of DIC at Survivors Pension Rate


Introduction

This topic contains information on surviving spouses receiving DIC benefits paid at the Survivors Pension rate, including

Change Date

May 1, 2015

III.v.4.F.2.a.  Policy:  Paying Surviving Spouse DIC at Survivors Pension Rate

Pursuant to 38 U.S.C. 1312(b), the payment of DIC to a surviving spouse at the Survivors Pension rate is permissible when the surviving spouse
  • receives additional benefits for children, and
  • the usual DIC rate payable would be less than the surviving spouse’s pension rate.
This situation will usually be found on a historical basis and it is now unusual for the following two reasons:
  • PL 101-568 reformed the DIC program effective January 1, 1993, and
  • the enactment of PL 103-446 on November 2, 1994, provides that a surviving spouse with eligibility to DIC may now elect Survivors Pension.  (Reference:  For more information on the surviving spouse’s election of Survivors Pension, see M21-1, Part III, Subpart v, 4.F.1.a.)
Nonetheless, if the Survivors Pension rate based on the surviving spouse’s income for Department of Veterans Affairs (VA) purposes would be greater than the surviving spouse’s entitlement to DIC benefits, apply the provisions of 38 CFR 3.702(f) to pay Survivors Pension in lieu of DIC.

III.v.4.F.2.b.  Claim for Increased Benefits Is Not Required
A claim for increased benefits is not required to pay benefits at the greater Survivors Pension rate.

Once a surviving spouse establishes entitlement, consider the case for the increased benefit if the Survivors Pension rate may be greater than the DIC payable.


III.v.4.F.2.c.  Considering Dependent Children When Computing Applicable Survivors Pension Rate

When computing the applicable death pension rate for the surviving spouse, include any
  • child under age 18
  • child over age 18 and under 23, attending school, and/or
  • child over age 18 and helpless.
Notes:
  • DIC is payable to the child in the additional amount specifically authorized for a school or helpless child.
  • The child’s DIC is countable as income for purposes of determining the Survivors Pension rate payable.

III.v.4.F.2.d.  Notifying Claimant of Survivors Pension Rate and Developing the Claim

When a surviving spouse files a claim or a case is encountered in which it appears the claimant may be entitled to this increased benefit, notify the claimant of the right to payment at the Survivors Pension rate.
If not already of record, request that the surviving spouse furnish evidence of income and net worth for appropriate periods for
  • himself/herself, and
  • the Veteran’s children.
Note:  If it appears probable that the Survivors Pension rate may be the greater benefit, simultaneously undertake development as necessary to determine the maximum benefit payable in original claims for death benefits.

III.v.4.F.2.e.  Adjusting the Award to Pay the Greater Rate

When adjusting an award to pay the greater of either the DIC rate or the Survivors Pension rate
  • adjust awards retroactively, currently or prospectively, as appropriate, in accordance with the facts in each case, and
  • make adjustments for changes in any of the following information so that the beneficiary will receive the greater benefit at all times and advise the claimant accordingly:
    • income or net worth
    • dependency of children
    • statutory changes in the regular DIC or Survivors Pension rates, or
    • any other reason affecting the benefit payable.

III.v.4.F.2.f.  Effective Date of Adjusted Award

Make the effective date of any increase payable to a surviving spouse already in receipt of DIC in accordance with 38 CFR 3.114(a) if evidence of entitlement is
  • of record, or
  • received within one year from the date of request.
Important:  The effective date should never be earlier than January 1, 1979.

III.v.4.F.2.g.  Apportioning DIC Awards Paid at Survivors Pension Rate

If the award to a surviving spouse receiving DIC at the Survivors Pension rate is to be apportioned for a child or children not in custody, pay the child or children the greater of the following rates to which he/she would be entitled:
  • the DIC apportioned share, or
  • the Survivors Pension rate.
Note:  For information about when a child not in the surviving spouse’s custody may be entitled to death pension benefits in his or her own name, while the surviving spouse continues to receive DIC, see VAOPGCPREC 4-1992.

3.  Retired Serviceperson’s Family Protection Plan Under 10 U.S.C. 1431


Introduction

This topic contains information on certain restrictions on the concurrent payment of VA benefits and Retired Serviceperson’s Family Protection Plan (RSFPP) benefits under 10 U.S.C. 1431, including

Change Date

May 1, 2015

III.v.4.F.3.a.  Eligibility for RSFPP

In order to determine eligibility for the Retired Serviceperson’s Family Protection Plan (RSFPP) under 10 U.S.C. 1431
  • VA must receive a claim for death compensation or DIC, and
  • the rating activity must make a determination of service connection (SC).
If a request for RSFPP eligibility is received from a family member or the service department, but a claim for death compensation or DIC has not been filed
  • inform the person requesting eligibility and/or an SC determination that VA has no authority to determine SC for the Veteran’s death unless a claim is filed, and
  • provide one of the following forms, as appropriate:
Reference:  For more information on the claim requirement for making an SC determination, see M21-1, Part III, Subpart ii, 7.5.c.
Note:  RSFPP was replaced by SBP, and no new entitlement for this benefit can be established.

III.v.4.F.3.b.  Restrictions on Concurrent Payments of VA Benefits and Family Protection Plan Benefits

Payments received under the RSFPP
  • do not bar concurrent payment of death compensation, Survivors Pension, or DIC, and
  • are excluded from computation of income in such cases, per 38 CFR 3.261(a)(14).
However, PL 87-381, effective October 4, 1961, amended the Uniform Contingency Option Act of 1953 to restrict benefits of certain surviving beneficiaries of service personnel electing under the RSFPP.
Certain survivors of electees are not entitled to annuities under this plan until they furnish the service department with proof that they are not eligible for death compensation or DIC.

III.v.4.F.3.c.  Notifying Service Department of Survivor’s Entitlement/ Non-Entitlement to Death Compensation or DIC

Provide notification of VA benefit awards to service departments only on specific request from the survivor or service department.
On receipt of a request from the survivor or service department,
  • furnish complete information concerning the survivor’s entitlement or non-entitlement to death compensation or DIC if such determination has been made or is made based on a claim filed for VA benefits, or
  • if a claim has not been filed, advise the requester that a determination may not be made until an application for benefits is received.

4.  Radiation Exposure Compensation Act (RECA) of 1990


Introduction

This topic contains information about certain restrictions on the concurrent payment of VA benefits and RECA payments, including

Change Date

November 22, 2011

III.v.4.F.4.a.  Background on RECA of 1990

The Radiation Exposure Compensation Act (RECA) of 1990 (42 U.S.C. 2210), authorized the Attorney General to make payments as restitution to a limited class of individuals (or survivors of individuals) with radiation-related diseases who had been
  • employed during a specified period in uranium mines in
    • Colorado
    • Utah
    • Arizona
    • Wyoming, and/or
    • New Mexico
  • present during designated periods at, or in, certain specified areas downwind of the
    • Nevada Test Site
    • Pacific Proving Grounds, and/or
    • Trinity Test Site at Alamogordo, New Mexico and/or
  • on-site participants at an atmospheric nuclear weapon test who weresubsequently diagnosed with one of the specific radiation-related diseases listed in 38 CFR 3.309(d)(2), with the exception of bone cancer and urinary tract cancer other than bladder cancer.

III.v.4.F.4.b.  Restrictions on Concurrent Payments of VA Benefits and RECA Payment

Prior to the enactment of PL 108-454 on December 10, 2004, a Veteran or surviving spouse who accepted a RECA payment made for a radiogenic disease that developed after participation onsite in an atmospheric nuclear test was thereafter barred from receiving compensation, or further payment of compensation for the same condition.
Similarly, a survivor who accepted a RECA payment based on the death of a Veteran resulting from a radiogenic condition was thereafter disqualified from receiving DIC based on death resulting from the same condition.

III.v.4.F.4.c.  Provisions of Public Law 108-454 for Concurrent Payment

Section 302 of the Veterans Benefits Improvement Act of 2004 (PL 108-454), provides that a Veteran or surviving spouse who is issued payment under RECA shall not be deprived of payment of compensation or DIC for the same disease or death
  • for any months beginning after March 26, 2002, and
  • once the entire amount of the RECA payment is recouped from compensation or DIC otherwise payable for that same disease.
Note:  If a case is encountered in which compensation or DIC was previously reduced, discontinued, or denied because of receipt of RECA, notify the claimant of potential entitlement under PL 108-454.  If benefits can be awarded, the effective date provisions of 38 CFR 3.114(a) would apply.

III.v.4.F.4.d.  Initiating and Directing Authorization Action in RECA Payment Cases

When a Veteran or surviving dependent files a claim under RECA
  • the Department of Justice initially contacts VA Central Office (CO):
C&P Service, Advisory Review (211) staff
Department of Veterans Affairs
810 Vermont Avenue NW
Washington, DC 20420, and
  • the Advisory Review staff then
    • contacts the appropriate Veterans Service Center Manager (VSCM), and
    • directs specific authorization actions.

III.v.4.F.4.e.  Offsetting Compensation or DIC Using BDN Upon Receipt of RECA Payment

Offset the compensation or DIC award in the same manner as adjustments are made for claims under 38 U.S.C. 1151.  VA benefits are offset for RECA payments with a withholding.
When RECA payments are elected, compensation or DIC payments are paid through the last day of the month preceding the month in which the RECA payment is issued, per 38 CFR 3.500(x).  The VA benefit is reduced or discontinued effective on the first day of the month RECA payment begins.

III.v.4.F.4.f.  Retroactive Adjustment of Awards

When VA receives notice that a Veteran or surviving dependent received RECA for a radiation-related disability or death for which compensation or DIC is being paid, the compensation or DIC must be
  • discontinued under 38 CFR 3.500(x) for any period of entitlement prior to April 1, 2002, and
  • reinstated effective April 1, 2002, for recoupment of the RECA payment.

III.v.4.F.4.g.  Directing Questions Regarding RECA Payment Cases

Direct questions regarding RECA payment cases to the Policy staff at (202) 461-9734.

5.  References to Election Information for DEA


Introduction

This topic contains information on the election of benefits by a surviving school child that is neither a minor nor incapable of self-support, including

Change Date

August 14, 2006

III.v.4.F.5.a.  Finality of Election of DEA
If DEA has been elected and payment has been received by the surviving child, the election is final and DIC benefits may not be restored or reelected.
Reference:  For information on the finality of an election of DEA, see 38 CFR 21.3023(c)(1).

III.v.4.F.5.b.  Additional Election Information

For information on elections between VA benefits and DEA benefits, see M21-1, Part III, Subpart iii, 6.B.3.
Historical_M21-1III_v_4_SecF_5-1-15.doc May 16, 2019 109 KB
4-24-19_Key-Changes_M21-1III_v_4_SecF.docx May 16, 2019 62 KB
Change-May-1-2015-Transmittal-Sheet-M21-1III_v_4_SecF_TS.docx May 16, 2019 39 KB
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