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Updated Dec 01, 2022

In This Section

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

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

 
 
 

Introduction

  
This topic contains information on DIC benefits under 38 U.S.C. 1310 and 1318, including
Change Date
  
December 1, 2022

XII.i.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 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 was
    • rated 100 percent for an SC disease or disability, or
    • entitled to individual unemployability (IU).
Note:  Establishing reasonable probability, alone, does not necessarily mean SC death will be granted, but that a medical opinion will ordinarily be requested if evidence does not already support an outright grant of benefits.  A medical opinion is not needed if the evidence of record indicates SC was granted for a condition affecting a vital organ and one of the following provisions of 38 CFR 3.312(c)(3) and (4) apply
  • SC disease or injuries resulted in debilitating effects and general impairment of health contributing to cause of death, or
  • the SC condition was of a progressive or debilitating nature and of such severity as to have a material influence in accelerating death.
Important:  VA Form 21P-530EZ, Application for Burial Benefits (Under 38 U.S.C. Chapter 23), is only considered an application for burial allowance, plot/interment allowance, and transportation benefit; this form is not considered a claim for Dependency and Indemnity Compensation (DIC).  A standard application form for DIC benefits is required to evaluate eligibility and entitlement to DIC.
 
References:  For more information on

XII.i.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 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
  • SC was granted for a condition affecting any vital organ and the provisions of 38 CFR 3.312(c)(3) or (4) apply, or
  • the cause of death is a presumptive disability and the evidence shows the Veteran meets the particular presumptive criteria.
References:  For more information on

XII.i.2.A.1.c.  When 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
  • a continuous period of not less than 5-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 under 38 U.S.C. 1318.

XII.i.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, see VAOPGCPREC 80-1990.
 

XII.i.2.A.1.e.  When 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

XII.i.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’ Educational 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

XII.i.2.A.1.g.  When a Survivor’s 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.
Notes:
  • When a rating decision is not required, the rating activity annotates VA Form 21-6789, Deferred Rating Decision, to show they
    • reviewed the claims folder, and
    • identified no evidence suggesting SC for the cause of death.
  • Pension automation conducts the same review of all survivor claims.  When this review is completed, annotation is placed on the award document by the system to note the review occurred.

XII.i.2.A.1.h.  Review of STRs

  
A review of service treatment records (STRs) is required only when DIC cannot be granted based on the evidence of record.

XII.i.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
  • STRs, 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.

XII.i.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
  • SC 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 and annotate the award to read DIC awarded per 38 U.S.C. 1318 based 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

 
 
Change Date
  
December 2, 2021

XII.i.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.
Award benefits for death under 38 U.S.C. 1151 in the same manner as if the disability or death were SC.
 
Reference:  For more information on entitlement to compensation or DIC under the provisions of 38 U.S.C. 1151, see