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Updated Dec 04, 2024

In This Section

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

1.  DIC Under 38 U.S.C. 1310 and 38 U.S.C. 1318

 

Introduction

  
This topic contains information on entitlement to DIC under 38 U.S.C. 1310 and 38 U.S.C. 1318, including

Change Date

  
December 4, 2024

XII.i.1.B.1.a.  Claims Submitted on Survivor Benefit Applications

  
The Department of Veterans Affairs (VA) designed most survivor benefit applications so that claimants may apply for multiple survivor benefits without filing separate applications for each one.
 
In general, VA must determine a claimant’s entitlement to each of the benefits named in the title of the application submitted by the claimant. This is a statutory requirement.
 
Use the table below to determine the actions to take based on the survivor benefit application.
 
If …
Then VA is obligated to address the claimant’s entitlement to …
  • Dependency and Indemnity Compensation (DIC), and
  • accrued benefits.
a surviving spouse or child submits
  • DIC
  • Survivors Pension, and
  • accrued benefits.
 
 
Notes:
  • Public Law (PL) 114-315 allows the Veterans Benefits Administration to grant a service-connected (SC) burial allowance to a surviving spouse without a claim when DIC benefits are granted and the death of the Veteran occurred on or after December 16, 2016 (the enactment date of PL 114-315).  The claims processor must infer SC burial in this situation when entitlement to the benefit is warranted.  The DIC award establishes entitlement and dependency.
  • When a new claim for DIC benefits is received, and a previous denial of DIC is of record, the submission of a VA Form 21P-534EZ or VA Form 21P-535 is sufficient to consider that the claimant is electing the reevaluation of a previously denied DIC claim under PL 117-168, Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act.  The claimant is not required to mark the DIC reevaluation checkbox on the application.
  • If a request for reevaluation of a previously denied DIC claim is indicated through a statement or applicable checkbox, but there is no entitlement for this election, then the request must be denied administratively in the notification letter.

References:  For more information on

XII.i.1.B.1.b.  Reviewing Information in the Claims Folder for DIC Claims

  
If the claims folder is available, review it to determine if the evidence necessary to support the survivor claim is of record and that no clear and unmistakable error was made in the granting of service connection (SC).
 
If a claims folder was
  • created during the Veteran’s lifetime, it may be possible to establish entitlement based on the evidence of record, or
  • not created during the Veteran’s lifetime, there will be little or no service data in the newly established deceased Veteran’s claims folder.
Notes:
  • Take immediate action to obtain any necessary service and medical evidence.
  • Evidence on file regarding service and character of discharge that does not meet the requirements of 38 CFR 3.203 must be verified before awarding benefits.
Important:  The corporate record is acceptable evidence to support the grant of SC for the cause of death if VA has granted SC for the disability identified as the primary or contributory cause of death.
 
References:  For more information on

XII.i.1.B.1.c.  When to Develop for Income and Net Worth on a Survivors Benefit Application

  
Use the table below to determine when to develop for income and net worth information on a substantially complete application for DIC and/or accrued benefits.
 
If …
Then …
basic eligibility for Survivors Pension does not exist, as in cases in which there is no qualifying service
do not develop income and net worth information.
 
Example:  In a case in which there is no qualifying service, it is appropriate to deny the claim for no qualifying service.
  • only partial income and net worth information was provided on the application, and
  • basic entitlement to Survivors Pension otherwise exists
develop for the missing information
unless the available information shows that the claimant ‘s income exceeds the maximum annual pension rate.
 
Important:  It is appropriate to deny a claim when income is excessive even if eligibility factors such as wartime service or Veteran status have not been verified.  However, the decision notice must fully inform the claimant of the unverified factors.
  • the claimant has alleged that death of the Veteran was SC, and
  • all income and net worth information was completely omitted
do not develop for income and net worth information.
 
Inform such claimants, in the decision notice, that
  • because no income or net worth information was provided on the application, VA considers the pension portion of the claim to be incomplete
  • if they wish to claim pension, they should submit a completed VA Form 21P-534EZ within one year after the date of the letter, and
  • if they do not wish to claim pension, no further action is needed.
Note:  It is not necessary to return a printed copy of the application to the claimant.
 
Exception:  If the claimant is a surviving parent, then develop for missing income and net worth information because that information is necessary to determine eligibility to the benefit.
 
Reference:  For more information on a substantially complete claim, see M21-1, Part II, Subpart iii, 1.C.

XII.i.1.B.1.d. Developing for Relationship Information

  
Review the evidence in VA records to verify whether the claimant was established as a dependent on the Veteran’s benefits during their lifetime.
 
Use the table below to determine if development is needed.
 
If the claimant was …
Then …
established as a dependent on the Veteran’s benefits
no development is needed.  Concede relationship status based upon a prior VA determination.
 
Exception:  Do not concede the relationship status if the marriage-date requirements noted in 38 CFR 3.54 are not met.
not established as a dependent on the Veteran’s benefits or the Veteran was not in receipt of benefits prior to death
development is required to obtain any necessary relationship information prior to benefits being awarded.
 
References:  For more information on

XII.i.1.B.1.e.  Evidence Required to Determine Entitlement to DIC

  
Use the table below to determine the evidence required to award entitlement to DIC.
 
If awarding DIC under …
Then VA needs evidence showing …
  • the cause of death, and
  • that the cause of death was
    • incurred or aggravated by, an SC disability, or
    • related to a disease or injury that existed during active military service.
Note:  A medical opinion may be needed to resolve the claim.
 
Reference:  For more information on medical opinion requests, see M21-1, Part XII, Subpart i, 1.B.1.h.
the Veteran’s SC disability was totally disabling for
  • 10 or more years immediately preceding death
  • a continuous period of not less than five years from the time of separation from service until death, or
  • one or more years immediately preceding death if the Veteran was a former prisoner of war (FPOW).
Notes:
  • Effective October 1, 2011, PL 111-275, allowed survivors of FPOWs with a disability continuously rated totally disabling for at least one year to be eligible for DIC without regard to the date of the Veteran’s death.  Previously, survivors were only eligible if the Veteran died after September 30, 1999.
  • The starting point for calculating the period is the effective date of the total evaluation.
Reference:  For more information on DIC benefits for survivors of Veterans rated totally disabled at the time of death, see 38 CFR 3.22.
 

XII.i.1.B.1.f.  Development for FNOD Automated 38 U.S.C. 1318 DIC Payments

 
  
Development is not required for the 38 U.S.C. 1318 DIC claims automated under the First Notice of Death (FNOD) process.

XII.i.1.B.1.g.  Obtaining Evidence Relating to Cause of Death

  
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
  • a requested VA medical opinion
  • service treatment records, or
  • private doctor or hospital treatment records.
Exceptions:  38 U.S.C. 1318 provides that SC for cause of death may be granted if the Veteran was in receipt of, or entitled to receive, disability compensation for an SC disability rated totally disabling for
  • 10 or more years immediately preceding death
  • a continuous period of not less than five years from the time of separation from service until death, or
  • one or more years immediately preceding death if the Veteran was an FPOW.
Where DIC is payable under 38 U.S.C 1318 and absent evidence to the contrary, presume that the cause of death was not due to homicide nor the Veteran’s willful misconduct in relation to 38 CFR 3.11 and 38 CFR 3.22, respectively.
 
References:  For more information on

XII.i.1.B.1.h.  When a Medical Opinion Is Required

  
When SC for the cause of the Veteran’s death cannot be granted based on the evidence of record, a medical opinion may be needed.
 
Request a medical opinion if
  • there is not sufficient medical evidence of record to make a decision on the claim
  • there is a documented cause of death, and
  • the evidence establishes that the Veteran suffered an event, injury, or disease in service, and at least one of the following
    • the evidence indicates that a condition associated with the Veteran’s death may be associated with the established event, injury, or disease in service or with another SC disability
    • there is conflicting medical evidence, or
    • there are questions regarding the credibility of evidence presented.
Notes:
  • For conditions listed on the death certificate as the primary or contributory cause of death that are claimed as secondary to a Veteran’s SC condition, a credible indication that the primary or contributory cause of death may be associated with the SC condition is sufficient reason to order a medical opinion.
  • A medical opinion must be requested if SC for the cause of death cannot be granted and the following apply:
    • coronavirus disease (COVID-19) is listed as a primary or contributory cause of death, and
    • the Veteran was SC for one of the conditions listed on the Centers for Disease Control and Prevention website that are more likely to lead to severe illness from COVID-19.
  • Medical opinions being requested that include COVID-19 as a primary or contributory cause of death must include a request for a contributory cause of death opinion.
Important:  In all situations that warrant a medical opinion for contributory cause of death, it is important to specifically request that the examiner opine whether or not the SC condition(s) in question
  • contributed substantially or materially to the Veteran’s death
  • combined to cause death, or
  • aided or lent assistance to the production of death.

It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection per 38 CFR 3.312(c)(1).

 
 References:  For more information on

XII.i.1.B.1.i.  When to Develop for SC for the Cause of Death

  
Send the claimant a Section 5103 notice development letter requesting medical evidence showing the Veteran’s death was caused by service when
  • there is not already sufficient evidence of record to grant DIC, and
  • SC for the cause of death is specifically claimed, or
  • the claimant is filing for Parents’ DIC.
Exceptions:  Do not develop for SC for the cause of death if the claimant
  • does not meet relationship requirements to establish entitlement to DIC, or
  • submits a VA Form 21P-534EZ application, as the notice has already been provided.
References:  For more information on

XII.i.1.B.1.j.  Referring DIC Cases to the Rating Activity

  
Once any necessary development is complete, refer the claim to the rating activity for a decision on the issue of DIC.
 
Important:  Some survivor claims may be referred to the rating activity as soon as they are received, without development, if:
  • any conditions listed on the death certificate under the cause of death or contributing factors matches one or more of the deceased Veteran’s SC disabilities
  • the cause of death is a presumptive disability and the Veteran meets the presumptive criteria, or
  • the requirements are met for DIC under 38 U.S.C. 1318.
Note:  The fact that the Veteran may never have actually received compensation (as in retired pay cases) does not preclude a grant of DIC.
 
Reference:  For more information on considering the reasonable probability of SC death, see M21-1, Part XII, Subpart i, 2.A.1.a.

XII.i.1.B.1.k.  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
  • individual unemployability under 38 CFR 4.16 and 38 CFR 3.22
  • disabilities for which disability compensation was granted for paired organs or extremities under 38 U.S.C. 1160, and
  • a disability acquired under 38 U.S.C. 1151
    • after discharge from service as a result of treatment in a VA medical facility, or
    • as a result of vocational rehabilitation training under any VA-administered law.

XII.i.1.B.1.l.  Automatic Generation of 38 U.S.C. 1318 DIC Payments Through the FNOD Process

  
The table below describes the 38 U.S.C. 1318 DIC payment automated under the FNOD process.
 
Stage
Description
1
VA processes a Veteran’s notice of death using the FNOD command.
2
During the process, VA systems search for a spouse established on the Veteran’s award.
3
If there is a surviving spouse established on the award for at least one year, and evidence that 38 U.S.C. 1318 DIC benefits exist, VA sends an automated letter informing the surviving spouse
  • that DIC payments under 38 U.S.C. 1318 will be received
  • of possible entitlement to additional survivor and burial benefits, and
  • of the requirement to submit an application if applying for these additional benefits.
4
VA systems wait six days to ensure there is no notification that 38 U.S.C. 1318 DIC should not be paid.
5
 The table below describes the automated actions after six days.
 
If, after the six-day waiting period, information is …
Then…
not received to indicate the 38 U.S.C. 1318 DIC payment should not be paid
the surviving spouse receives a check for the 38 U.S.C. 1318 DIC payment.
received that indicates the surviving spouse is not entitled to this payment
the automatic payment terminates.
 
Note:  If the surviving spouse believes the payment was erroneously terminated, an application for benefits must be submitted.
 
 

XII.i.1.B.1.m.  EP Assignment and Automated DIC Claims

  
Although DIC claims may be automated, the process and end products (EPs) for automation are different.
  • For 38 U.S.C. 1318 DIC claims automated under the FNOD process
    • EP 149 is solely used to process the claims
    • the claims are granted without an application and/or upon processing a valid report of death, and
    • credit for this EP is not given to the station of origination, and
  • for DIC claims automated under the Automated Pension Claims Processing also known as Pension Automation (PA)
    • claims are processed as an EP 140 at any point during the lifecycle of the claim
    • an application and certain documents are required to be submitted so data can be extracted
    • business rules are utilized to generate ratings, award decisions, and notification letters for burial, DIC, and pension claims, and
    • if the FNOD automation fails for 38 U.S.C. 1318 DIC claims, the claim can be automated by PA once an application is received.
Reference:  For more information on EP credit, see M21-4, Appendix B.

XII.i.1.B.1.n.  Developing for Proof of Death

  
Develop for evidence listed in 38 CFR 3.211 that constitutes proof of death.
 
When acceptable evidence cannot be obtained, the fact that death occurred may still be conceded under the provisions of 38 CFR 3.211(f).  These cases must be
  • fully developed for facts and circumstances that support a presumption of death, and
  • submitted to the rating activity for determining
    • SC for the cause of death
    • the existence of a disability related to service at the time of death, or
    • discharge from service for an SC disability.
Reference:  For more information on developing for fact of death, see M21-1, Part XI, Subpart i, 2.B.

XII.i.1.B.1.o.  When DIC Benefits Are Not Payable

  
DIC benefits are not payable if the
  • cause of death is found to have been the result of a Veteran’s own willful misconduct, or
  • Veteran’s death was wrongfully and intentionally caused by the claimant.
Note:  A surviving spouse may be considered for entitlement to Survivors Pension if entitlement to DIC cannot be established because the Veteran’s death was due to the Veteran’s willful misconduct.
 
References:  For more information on
 

2.  DIC Under 38 U.S.C. 1151

 

Introduction

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

Change Date

  
April 19, 2021

XII.i.1.B.2.a.  Definition:  DIC Under 38 U.S.C 1151

  
38 U.S.C. 1151 provides for the payment of DIC for a 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.
Award benefits for death under 38 U.S.C. 1151 in the same manner as if the death were SC.
 
Notes:
  • Domiciliary care is not considered VA hospital care, medical or surgical treatment, or an examination for the purpose of establishing entitlement under 38 U.S.C. 1151 per Mangham v. Shinseki, 23 Vet.App. 284, 289 (2009).
  • Hospital care, for the purposes of establishing entitlement to compensation under 38 U.S.C. 1151, does not include treatment or care provided in a non-VA facility under VA contract.
  • VA treatment or examination resulting in additional disability or death coincident with a Veteran’s residence in a contracted non-VA facility might result in eligibility under 38 U.S.C. 1151.

XII.i.1.B.2.b.  Identifying DIC Claims Under 38 U.S.C. 1151

  
Claims for DIC under 38 U.S.C. 1151 (38 CFR 3.361) must be submitted on a VA prescribed form for DIC benefits.
 
Notes:
  • The claimant must specifically raise the issue that the Veteran’s death was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault of VA.
  • DIC under 38 U.S.C. 1151 cannot be inferred by the claims processor or the rating activity.
References:  For more information on
  • claims based on injury due to VA hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program, see 38 CFR 3.154, and
  • acceptable VA forms, see M21-1, Part II, Subpart iii, 1.A.

XII.i.1.B.2.c.  Establishing Fault on the Part of VA

  
To establish that fault on the part of VA in furnishing medical care, treatment or examination was the proximate cause of a Veteran’s death, the evidence must show that
  • the medical care, treatment, or examination caused the death, and
  • VA
    • failed to exercise the degree of care that would have been expected of a reasonable health-care provider, or
    • furnished the care without the Veteran’s or Veteran’s representative’s informed consent.
Reference:  For more information on proximate cause, see 38 CFR 3.361(d).

XII.i.1.B.2.d.  Obtaining Independent Medical Evidence and Medical Opinions

  
To clarify whether the care, treatment, or examination at issue resulted in death, it may be necessary to obtain
  • a medical opinion from a VA medical facility as shown in M21-1, Part IV, Subpart i, 2.A.7
  • independent medical evidence, such as
    • a medical statement provided by a member of the regional office (RO) rating activity who is a qualified medical professional, such as a physician, physician’s assistant, or registered nurse, and not a signatory to the rating, or
    • information from a medical treatise, such as The Merck Manual of Diagnosis and Therapy, Cecil Textbook of Medicine, or Physician’s Desk Reference (PDR), and/or
  • an independent medical opinion under 38 CFR 3.328, but only when warranted by the medical complexity or controversy involved in the case.
Reference:  For more information on obtaining independent medical opinions under 38 CFR 3.328, see M21-1, Part IV, Subpart i, 2.E.5.

XII.i.1.B.2.e. Determining Effective Dates of Entitlement Under 38 U.S.C. 1151

  
The effective date of entitlement to DIC under 38 U.S.C. 1151 is the
  • first day of the month in which the Veteran’s death occurred, if the claim is received within one year after the date of death, or
  • date of receipt of the claim, if the claim is received one year or more after the date of death.
Reference:  For more information on effective dates for benefits when disability or death is due to VA hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program, see 38 CFR 3.400(i).

XII.i.1.B.2.f.  Claims for Which the RO Determines Eligibility to DIC Benefits Under 38 U.S.C. 1151

  
Determine eligibility for benefits when the
  • Veteran died while receiving compensation under 38 U.S.C. 1151, or
  • claimant has applied, or indicated an intent to apply, for benefits under 38 U.S.C. 1151.

XII.i.1.B.2.g.  Claims for Which P&F Service Determines Eligibility to DIC Benefits Under 38 U.S.C. 1151

  
Pension and Fiduciary (P&F) Service determines eligibility for cases in which VA Form 10-2633, Report of Special Incident Involving a Beneficiary, indicates that death may have been due to circumstances contemplated by 38 U.S.C. 1151.

XII.i.1.B.2.h. Action Needed by P&F Service to Determine Eligibility of DIC Under 38 U.S.C. 1151

  
The table below describes the review and steps to take when making a determination of eligibility to DIC benefits under 38 U.S.C 1151.
 
Stage
Who Is Responsible?
Description
1
Under Secretary for Health
  • Forwards copies of VA Form 10-2633 to P&F Service for review, and
  • addresses the reports to the Under Secretary for Benefits, ATTN: Director, P&F Service (21PF).
2
Director, P&F Service
Reviews the VA Form 10-2633 and uploads the form to the electronic claims folder.
3
P&F Service
If applicable,
  • makes a determination as to entitlement, and
  • sends the appropriate notice to the RO to take action.
4
RO

XII.i.1.B.2.i.  Action to Take After P&F Service Makes a Determination

  
Use the table below to determine the action to take after P&F Service makes a determination.
 
If P&F Service …
Then in cases in which a claim …
establishes entitlement to DIC
  • has been received, take appropriate rating and award action, or
  • is not of record, send an application to any dependents who may be entitled to benefits.
determines that entitlement does not exist
has been received, take appropriate rating and denial action.
 
 

3.  DIC and Children

Introduction

  
This topic contains information on initial processing of claims by children of Veterans, including

Change Date

  
November 26, 2018

XII.i.1.B.3.a.  Considering a Child’s Entitlement to DIC

  
A claim is required if a child’s entitlement to DIC arises because a surviving spouse is no longer entitled or because the child reaches age 18.
 
Accept a claim filed by a surviving spouse who does not have entitlement as a claim for any child or children in their custody named in the claim.
 
For claims submitted within one year after the date entitlement arose, determine whether a claimant was a child on the date entitlement arose, not the date the claim was received.  If a claim is filed within one year of the Veteran’s death, the date of death is the appropriate date to use in determining whether the claimant was a child.
 
For claims filed more than one year after the date entitlement arose, determine whether a claimant is a child based on the date of receipt of the claim.
 
Important:  A claimant could qualify as a child if a pending and undecided claim (including one that was reasonably raised) was filed on the claimant’s behalf while the claimant was a child for VA purposes.  Otherwise, the appropriate child assessment date is the date of receipt of claim.
 
Reference:  For more information on effective dates for DIC, see 38 CFR 3.400(c)(4).

XII.i.1.B.3.b. Determining a Child’s Entitlement to DIC

  
Use the table below to determine a child’s eligibility to DIC.
 
If …
Then …
  • the claim of a surviving spouse is denied, and
  • all evidence requested to determine entitlement of a child or children named in that claim is submitted within one year from the date of request
consider the denied claim as a claim for benefits for the child or children as though the denied claim were filed solely on their behalf.
 
Important:  Do not consider entitlement to benefits for the child or children for any period prior to the date of receipt of a new claim unless evidence is received within one year from the date of the request.
  • payments of Survivors Pension, Death Compensation, or DIC to a surviving spouse have been discontinued because of remarriage or death, or
  • a child becomes eligible for DIC after reaching age 18
  • develop for any evidence necessary to establish entitlement for the child or children named in the surviving spouse’s claim, and
  • if the evidence is received within one year from the date of the request, consider the discontinued claim as a claim for the child or children.