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Updated Dec 04, 2024

In This Section

  
This section contains the following topics:
 
 

1.  General Information on Initial Awards to Dependents

 

Introduction

  
This topic contains information on initial awards to dependents, including

Change Date

  
August 2, 2022

XII.i.3.A.1.a.  Determining the Effective Date When Death Occurs During Service

  
Use the following references to determine the appropriate effective date of an award when death occurs during service:

XII.i.3.A.1.b.  Handling Claims When All Dependents Do Not Apply

  
Generally, award action on a claim filed by a surviving spouse will not be delayed if there is a child for whom a claim has not been filed; nor, will a claim filed by a child be delayed if a potential surviving spouse has not filed a claim.
 
Follow the steps in the table below to control claims in which not all dependents apply.
 
Step
Action
1
Make any necessary attempts to locate additional dependent(s) for the purpose of furnishing an application.
2
Pay the dependent that filed a claim at the same rate as if all dependents had filed a claim.
3
If a potential surviving spouse has not applied, award the corresponding share of benefits under the appropriate payee code(s) to any children who filed a claim.
4
Maintain an appropriate control for retroactive adjustment if claims are not received at the expiration of the period for which retroactive benefits may be awarded.
5
At the expiration of the control, and if no other potential dependent has filed a claim, amend the running award to authorize the full rate from the date benefits were first awarded.
 
Reference:  For more information on awards where not all dependents apply, see

XII.i.3.A.1.c.  Handling Claims in Which the Claimant Is Awarded Less Than the Full Rate

  
If a case is encountered in which a beneficiary was awarded less than the full rate and an additional claimant, who was receiving benefits, is no longer entitled to benefits
  • adjust the claim without regard to the effective date requirements of 38 CFR 3.114(a), and
  • authorize the retroactive increase effective as of the commencing date of the award, but not prior to December 1, 1962.
Note:  If the payee has died, benefits may be adjusted and payable as an accrued benefit.
 
Reference:  For more information on accrued benefits, see
 
 

2.  Determining the Effective Date for DIC

 
 

Introduction

  
 

Change Date

  
December 4, 2024

XII.i.3.A.2.a.  Determining the Effective Date for DIC When Veteran Dies After Separation From Service

  
Use the table below to determine the effective date of Dependency and Indemnity Compensation (DIC).
 
If the …
Then the effective date is the …
  • date of death is before October 1, 1982, and
  • claim is received within one year of death
first day of the month of death.
  • date of death is before October 1, 1982, and
  • claim is not received within one year of death
date of receipt of claim.
  • date of death is on or after October 1, 1982
  • claim is received within one year of death, and
  • Veteran’s rate for the month of death (MOD) is equal to or greater than the monthly DIC benefit rate
first day of the month of death.
  • date of death is on or after October 1, 1982
  • claim is received within one year of death, and
  • Veteran’s rate for the MOD is less than the monthly DIC rate
first day of the month following death.
  • date of death is on or after October 1, 1982, and
  • claim is not received within one year of death
date of receipt of claim.
  • date of death is on or after January 1, 1997, and
  • claim is received within one year of death
first day of the month of death.
  • date of death is on or after January 1, 1997, and
  • claim is not received within one year of death
date of receipt of claim.
XII.i.3.A.2.b.  Application of 38 CFR 3.114 to DIC Claims  
38 CFR 3.114 provides that an award of DIC associated with a liberalizing change of law cannot be earlier than the date a liberalizing law or administrative issue adding a new presumptive condition became effective.  Thus, when service connection (SC) for cause of death is granted under a presumptive basis and no other service-related issues are linked to the Veteran’s death, the entitlement date for DIC cannot be earlier than the effective date of the change of law when granted under 38 CFR 3.114.
 
Notes:
  • When SC for cause of death may be established on both a direct and a presumptive basis, the direct basis may result in a more favorable effective date since it is not limited by 38 CFR 3.114.
  • Pension should be considered and/or granted from the earliest qualifying date when the effective date for DIC under a presumptive basis is limited by 38 CFR 3.114 and entitlement to both benefits exists.
References:  For more information on

XII.i.3.A.2.c.  Effective Dates When Granting DIC Reevaluations Under PL 117-168

  
Under Section 204 of Public Law (PL) 117-168, Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act of 2022, the effective date retroactivity provisions for DIC reevaluations apply with respect to presumptions of SC
  • established or modified on or after the date of enactment of the PACT Act (August 10, 2022), and
  • pursuant to amendments made by the PACT Act.
When elected by the claimant, on a form prescribed by the Secretary, the Department of Veterans Affairs (VA) is required to
  • reevaluate previously denied DIC claims as if the establishment or modification of the presumption of service connection had been in effect on the date of the submission of the original claim without regard to 38 U.S.C. 5110, and
  • assign an effective date as if the newly established or modified presumption was in effect at the time of the original DIC claim.
Notes:
Important:  The PACT Act does not contain a time limit on when a claimant can request reevaluation of a previously denied DIC claim.

XII.i.3.A.2.d.  Reevaluation of a Previously Denied DIC Claim and School Children

  
Eligibility for earlier entitlement based on a reevaluation of a previously denied DIC claim must be considered upon receipt of a VA From 21-674 that is filed by a school-aged child.  Earlier eligibility will be rare in this circumstance.
 
Entitlement to DIC under the PACT Act upon reevaluation must be determined for the period a school-aged child may be eligible.
 
The basis for reevaluation can be based on the previously denied DIC claim or based on the surviving spouse’s previously denied DIC claim if the potential claimant was claimed as a dependent on the application.
 
A claim for reevaluation must be solicited to a school-aged child when a surviving spouse is granted DIC upon reevaluation for a previously denied claim when that claim previously claimed said child as a dependent.  This solicitation is required as a school-aged child must now be on their own award for DIC.
 
In these cases, follow the steps in the table below to solicit a claim.
 
Step
Action
1
Award the surviving spouse any dependency allowance for the period the previously claimed child was under the age of majority.
2
Explain in the surviving spouse’s award notification letter that an application for DIC in the school-aged child’s own right may be filed if continued entitlement is shown.
3
Enclose a VA Form 21-674 for each child that is being removed from the surviving spouse’s award based on age.
 
Note:  This requirement for solicitation applies to all DIC grants based upon reevaluation of a previously denied DIC claim when a child is removed from the surviving spouse’s award based on age.

XII.i.3.A.2.e.  Effective Dates When Granting SC for COVID-19

  
38 U.S.C. 1164 first established the presumption of SC for Novel Coronavirus (COVID-19) effective January 5, 2021.  The examples below demonstrate how the theory of SC for the cause of death may impact the assignment of effective dates.
 
Example 1:  Veteran died November 14, 2020.  Surviving spouse applies for DIC on December 4, 2020.  SC for COVID-19 is granted under a presumptive basis.  The entitlement date for DIC is January 5, 2021, with an award effective date of February 1, 2021, even though the surviving spouse applied within a year of the Veteran’s death.  If entitlement to pension also exists, it may be granted from December 1, 2020 (as the award effective date) until February 1, 2021.
 
Example 2:  Same scenario as example 1 except SC for COVID-19 is granted under a direct basis.  The entitlement date for DIC is November 1, 2020, first of the month of the Veteran’s death, with an award effective date of December 1, 2020.
 
Example 3:  Veteran died May 6, 2021.  Surviving spouse applies for DIC on January 7, 2022.  SC for COVID-19 is granted under a presumptive basis.  The entitlement date for DIC is May 1, 2021, with an award effective date of April 1, 2021, because the application was received more than one year after the effective date of the law.  The earliest that VA can pay benefits is from the date of death.
 
Reference:  For more information on maximizing benefits based on the most favorable theory of SC, see
 

3.  Application of 38 CFR 3.107 on Awards to Surviving Spouses or Children

 
 

Introduction

  

Change Date

  
August 2, 2022

XII.i.3.A.3.a.  When 38 CFR 3.107 Does Not Apply

  
38 CFR 3.107 does not apply if a
  • surviving spouse files a claim for Survivors Pension which does not include a child in custody, or
  • child in the custody of the surviving spouse files a claim for Survivors Pension without a claim from the surviving spouse.

XII.i.3.A.3.b.  Definition:  Family Unit

  
For VA purposes, a family unit consists of all members of a family, including the spouse and children, without regard to whether or not they can be established as dependents.

XII.i.3.A.3.c.  VA Treatment of a Family Unit

  
VA treats all members of the family unit as one entity for entitlement purposes and considers all income from any source for all members of the group in making a determination of entitlement to income-based benefits.

XII.i.3.A.3.d.  When Not to Delay Award Action

  
Do not delay award action on a claim filed by
  • a surviving spouse within one year following the date of the Veteran’s death, even if it is shown that a child (not included in the claim of record) exists for whom a claim has not been filed
  • a child, even if a potential surviving spouse has not filed a claim, or
  • a child, or for a child out of the legal custody of a potential surviving spouse pending receipt of claims from a potential surviving spouse or children.

XII.i.3.A.3.e.  Locating Additional Dependents

  
Make attempts to locate potential dependents in order to furnish them with an application form.
 
Inform the claimant that the income, net worth, and dependency evidence for the other potential beneficiary(ies) must be of record prior to further action on the claim.

XII.i.3.A.3.f.  Determining Rates Payable

  
Any awards to persons who have filed a claim are at the rates payable as though all dependents had filed a claim until the expiration of the period within which a retroactive share may be awarded to the additional dependent(s).

XII.i.3.A.3.g.  Determining How to Award a Share of Benefits

  
Use the table below to determine how to award a share of benefits.
 
If …
Then …
a potential surviving spouse has not filed a claim
follow the procedures in M21-1, Part XII, Subpart i, 3.C.2.a.
  • there is no surviving spouse, and
  • not all the children have filed a claim
pay the appropriate share to the children who have filed based on the total number of potentially entitled children.

XII.i.3.A.3.h.  Considering Retroactive Adjustments

  
Retroactive adjustments to running awards may be necessary
  • when claims from additional dependents are not received by the expiration of the period allowed, and
  • due to the
    • death or marriage of an additional dependent, or
    • election of another benefit by a child, before filing a claim and establishing entitlement.

XII.i.3.A.3.i.  Controlling for Retroactive Adjustments

  
Establish a future diary code under reason code 30 for receipt of a claim that could potentially establish retroactive entitlements.
 
If no claim has been filed by the potential dependent(s) by the expiration of the period allowed, amend the running award(s) to authorize the full rate from the original effective date of the award.
 
Reference:  For more information on controlling retroactive entitlement when surviving spouse fails to file a claim, see M21-1, Part XII, Subpart i, 3.C.2.a.
 

4.  Application of 38 CFR 3.107 on Awards to Parents

 
 

Introduction

  
This topic contains information on the application of 38 CFR 3.107 on awards to parents, including

Change Date

  
July 12, 2015

XII.i.3.A.4.a.  Rights of a Non-Claiming Parent in DIC Cases

  
In DIC cases, under 38 CFR 3.251(a)(5), if there are two parents living and only one parent has filed a claim, the mere continued existence of the other parent affects the rate payable to the claimant.
 
The other parent’s potential right continues until
  • death, or
  • receipt of evidence of a legal bar to entitlement, other than excessive income.

XII.i.3.A.4.b.  Rates of DIC Payable to Claiming Parents

  
The claiming parent is allowed DIC at the rate payable as if there were only one surviving parent, if it is determined that the non-claiming parent no longer has entitlement to DIC because
 

5.  Application of 38 CFR 3.650 When Additional Dependents File a Claim

 
 

Introduction

  
This topic contains information on the application of 38 CFR 3.650 when additional dependents file a claim, including

Change Date

  
July 12, 2015

XII.i.3.A.5.a.  Adjustment of Running Awards

  
Follow the due process procedures of M21-1, Part X, Subpart ii, 3.A before reducing any running award if
  • benefits were not withheld, and
  • a claim is received from another member of the same class who apparently is entitled to share in the same benefit (pending development).
Reduce any running awards, effective as of the date of last payment, at the expiration of the control period.
 
Important:  Do not use these rules in pension cases, since there is no withholding for additional claimants.
 
Reference:  For more information on the rules used to determine the effective date of entitlement for additional claimants and for the adjustment of any running award from which a share should have been withheld under 38 CFR 3.107, see 38 CFR 3.650.

XII.i.3.A.5.b.  Action to Take in Response to a Protest From the Payee

  
If a protest is received from a payee whose award is reduced, follow the contested claims procedure in M21-1, Part VI, Subpart iii, 3.A–C.

XII.i.3.A.5.c.  Action to Take if the Additional Dependent Is Not Entitled

  
Restore or release the full rate payable to entitled persons from the date of reduction or entitlement if it is determined that the additional claimant is not entitled.

XII.i.3.A.5.d.  Action to Take if the Additional Dependent Is Entitled

  
If an additional dependent establishes entitlement
  • award the additional dependent’s full share effective the date of entitlement, and
  • adjust any running awards.
Use the table below to adjust running awards.
 
If the additional dependent is entitled …
Then reduce the running awards from the …
from a date before the date VA received their claim
first day of the month following the date of entitlement.
 
Note:  Any resulting overpayment due to failure to withhold benefits is subject to recovery or waiver of recovery.
only from the date VA received their claim
first day of the month following the later of the following dates:
  • the date of the claim, or
  • the date of the last payment.
before October 1, 1982
later of the following dates:
  • the effective date of entitlement
  • the date of the claim, or
  • the date shown in the LAST PAID DATE field in the Veterans Benefits Management System and/or Share.

XII.i.3.A.5.e.  Failure to Reduce an Award When Entitlement of an Additional Dependent Is Established

  
If VA fails to reduce a running award, when entitlement of an additional dependent has been established, this is considered an administrative error.
 
To rectify the error