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M21-1, Part IV, Subpart iii, Chapter 2, Section A – Rating Dependency and Indemnity Compensation (DIC) – Rating DIC and Death Compensation Claims

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2

1.  DIC Benefits Under 38 U.S.C. 1310 & 1318


Introduction

This topic contains information on DIC benefits under 38 U.S.C. 1310 & 1318, including

Change Date
May 2, 2018

IV.iii.2.A.1.a.  Considering the Reasonable Probability of SC Death

A reasonable probability of service-connected (SC) death exists if, based on a rating decision made during the Veteran’s lifetime, one or more of the following exists:
  • service connection (SC) was granted for any chronic disease under 38 CFR 3.309
  • SC was granted for a condition affecting any vital organ
  • the death certificate lists at least one of the Veteran’s SC disabilities as a principal or contributory cause of death, or
  • the Veteran
    • had at least one SC disease or disability evaluated at 50 percent or more disabling
    • was rated 100 percent for an SC disease or disability, or
    • was entitled to individual unemployability (IU).

IV.iii.2.A.1.b.  When DIC Is Payable Under 38 U.S.C. 1310

The rating activity must determine if, based on the evidence of record, it is at least as likely as not that the Veteran’s death was related to service.  Grant Dependency and Indemnity Compensation (DIC) when
  • the principal or contributory cause of death shown on the death certificate matches one or more of the deceased Veteran’s SC disabilities or
  • the cause of death is a presumptive disability and the evidence shows the Veteran meets the particular presumptive criteria.
Reference:  For more information on the types of evidence required to confirm the cause of death, see 38 CFR 3.211.

IV.iii.2.A.1.cWhen DIC Is Payable Under 38 U.S.C. 1318

Pay DIC to a surviving spouse or children in the same manner as if death were SC, if a Veteran was in receipt of, or entitled to receive, disability compensation for an SC disability totally disabling for
  • 10 or more years immediately preceding death, or
  • a continuous period of not less than five years from the time of separation from service until death or
  • 1 or more years immediately preceding death if the Veteran was a former prisoner of war
Notes:
  • The starting point for calculating the 10-year period is the effective date of the total evaluation.
  • The fact that the Veteran may never have actually received compensation (as in retired pay cases) does not preclude a grant under38 U.S.C. 1318.

IV.iii.2.A.1.d.  Evaluations That Provide Entitlement to Benefits Under 38 U.S.C. 1318

Evaluations that provide entitlement to benefits under 38 U.S.C. 1318 include total evaluations based on
Reference:  For more information on granting under 38 U.S.C. 1151, seeVAOPGCPREC 80-1990.

IV.iii.2.A.1.eWhen DIC Is Not Payable Under 38 U.S.C. 1318

Benefits under 38 U.S.C. 1318 are not payable if
  • the cause of death is found to have been the result of a Veteran’s own willful misconduct, or
  • the Veteran’s death was wrongfully and intentionally caused by the claimant.
Note:  Absent evidence to the contrary in Department of Veterans Affairs (VA) records or on the death certificate, presume that the cause of death was not due to the Veteran’s willful misconduct.
 
References:  For more information on

IV.iii.2.A.1.f.  DEA under 38 U.S.C. Chapter 35

Whenever DIC is granted under 38 U.S.C. 1310 or 38 U.S.C. 1318, the rating must address Dependents’ Education Assistance (DEA) under 38 U.S.C. Chapter 35.
 
Note:  Surviving spouses granted automated 38 U.S.C. 1318 DIC must apply separately for DEA under 38 U.S.C. Chapter 35.
References:  For more information on

IV.iii.2.A.1.gWhen a Survivor Claim Does Not Require a Rating Decision

When survivor claims are referred to the rating activity for review, a formal rating decision is not required if
  • SC for cause of death was not claimed, and
  • the rating activity finds no basis for pursuing the matter further, or
  • an automated 38 U.S.C. 1318 DIC payment is granted.
Note:  When a rating decision is not required, the rating activity annotates VA Form 21-6789–E, Deferred Rating Decision, to show they
  • reviewed the claims folder, and
  • identified no evidence suggesting SC for the cause of death.

IV.iii.2.A.1.h.  Review of STRs

A review of STRs is required only when DIC cannot be granted based on the evidence of record.

IV.iii.2.A.1.i.  Evidence to Support a Claim for DIC

Evidence to support a claim for DIC may be obtained from
  • the claims folder
  • corporate record
  • VA medical center treatment reports or VA outpatient clinic records
  • service treatment records, or
  • private doctor or hospital treatment records.
Important:  If the rating activity can grant DIC, and there is sufficient evidence in the Veteran’s corporate record, then the claims folder is not needed for review.

IV.iii.2.A.1.j.Consideration for Payment Under 38 U.S.C. 1318 if SC Death Is Denied

The rating activity must consider entitlement to payment under 38 U.S.C. 1318 if
  • service connection for cause of death is denied, and
  • the veteran had a totally disabling SC condition at the time of death.
Use the table below to determine the appropriate action to take if the rating activity determines that the cause of death is not SC.
 If the rating activity …
Then …
  • denies SC for the cause of death, and
  • grants entitlement to payment as if death were SC
  • prepare an award using special law code 19, and
  • annotate the award to read “DIC awarded per 38 U.S.C. 1318based on rating dated [date].”
denies
include a remark that these issues were considered in any denial or pension award prepared.

2.  DIC Benefits Under 38 U.S.C. 1151


Introduction

This topic contains information on DIC benefits under 38 U.S.C. 1151, including

Change Date
June 15, 2015

IV.iii.2.A.2.a.  Benefits Under 38 U.S.C. 1151

38 U.S.C. 1151 provides for the payment of compensation for death that is
  • not the result of the Veteran’s willful misconduct, and
  • attributable to
    • hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a VA employee or in a VA facility as defined in 38 U.S.C. 1701(3)(A)
    • participation in vocational rehabilitation training under 38 U.S.C. Chapter 31, or
    • participation in Compensated Work Therapy (CWT).
Award benefits for death under 38 U.S.C. 1151 in the same manner as if the disability or death were SC.

IV.iii.2.A.2.b.  Rating Guidance Under 38 U.S.C. 1151

For more information on entitlement to compensation or DIC under the provisions of 38 U.S.C. 1151, see
Change-June-15-2015-Transmittal-Sheet-M21-1MRIV_iii_2_TS.docx May 21, 2019 45 KB
Change-July-30-2015-Transmittal-Sheet-M21-1MRIV_iii_2_SecA_TS.doc May 21, 2019 58 KB
5-2-18_Key-Changes_M21-1-IV_iii_2_SecA.docx May 21, 2019 49 KB
03-14-16_KeyChanges_M21-1IV_iii_2_SecA.docx May 21, 2019 52 KB
Historical_M21-1IV_iii_2_SecA_07-30-2015.doc May 21, 2019 108 KB
Historical_M21-1MRIV_iii_2_SecA_06-15-2015.doc May 21, 2019 103 KB
Transmittal-Sheet-pt04_sp03_ch2_TS.doc May 21, 2019 61 KB
Transmittal-Sheet-04_13_09.doc May 21, 2019 61 KB
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