10.1. Dependency & Indemnity Compensation (DIC)
A veteran's compensation benefits end at the death of the veteran. A surviving spouse does not continue to receive the veteran's benefits. However, the law creates a separate Dependency and Indemnity Compensation ("DIC") benefit that dependent spouses, minor children, children up to age 23 who are in school, and, in some cases, parents can claim after the death of a veteran. Each DIC claim is its own original claim for VA benefits that is legally independent of the veteran's award.
The key issue in a DIC claim is usually whether the veteran's death was service-connected. Generally, if the principal cause or one of the contributory causes of a veteran's death was a service-connected condition, an eligible survivor is entitled to DIC. DIC can be awarded even if the condition was not service connected at the time of death or even if the veteran never filed a claim with VA, if service-connection can be established by existing evidence. A DIC claim can be filed at any time, even decades after the veteran's death, but if it is filed within one year of the veteran's death compensation will start from the date of death rather than the date of the application.
DIC is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. 38 U.S.C. § 1310; Dyment v. West, 13 Vet. App. 141, 144 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Hanna v. Brown, 6 Vet. App. 507, 510 (1994) Darby v. Brown, 10 Vet. App. 243, 245 (1997). A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability is the principal cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). To be a contributory cause of death, the disability must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). The Board's determination of whether a veteran's death was service connected is a finding of fact that the Court reviews under the "clearly erroneous" standard. 38 U.S.C. § 7261(a)(4); Wray v. Brown, 7 Vet. App. 488, 492 (1995).
A "surviving spouse" is defined as a person of the opposite sex who was the spouse of a veteran at the time of the veteran's death, and who lived with the veteran continuously from the date of marriage to the date of the veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse) and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran, and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C. § 101(3); see also 38 C.F.R. § 3.50(b). However, no compensation shall be paid to a surviving spouse unless the surviving spouse was married to the veteran:
(1) before expiration of fifteen years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated; or
(2) for one year or more; or
(3) for any period of time if a child was born of the marriage, or was born to them before the marriage.
38 U.S.C. §§ 1102, 1304, 1541(f); 38 C.F.R. § 3.54(c).
In determining whether a claimant is the veteran's "surviving spouse" for purposes of VA benefits, the validity of the marriage depends on "the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued." 38 U.S.C. § 103(c); see also 38 C.F.R. § 3.1(j). A claimant "has the burden to come forward with preponderating evidence of a valid marriage under the laws of the appropriate jurisdiction." Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991); see also Sandoval v. Brown, 7 Vet. App. 7, 9 (1994) (stating that "before applying for benefits, a veteran's spouse must supply proof of her or his marital status" to achieve claimant status); 38 C.F.R. § 3.205 (providing for a number of ways that a spouse can prove marital status). The validity of a divorce decree regular on its face will only be questioned by VA if such validity is questioned by a party. 38 C.F.R. § 3.206(a). The Board's determination regarding whether a person is a surviving spouse of a deceased veteran is a question of fact that the Court reviews under the "clearly erroneous" standard. 38 U.S.C. § 7261(a)(4); Dedicatoria v. Brown, 8 Vet. App. 441, 443 (1995).
Where a DIC claimant submits evidence that an attempted marriage was invalid because of a legal impediment, such as the nonrecognition of common law marriages, see VA Gen. Coun. Prec. 58-91 (June 17, 1991), the marriage will still be "deemed valid" if:
(1) the marriage occurred one year or more before the veteran died or if a child was born of the marriage;
(2) the claimant entered into the marriage without knowledge of the legal impediment;
(3) the claimant cohabitated with the veteran continuously from the date of marriage to the date of death; and
(4) no claim has been filed by a legal surviving spouse who has been found to be entitled to death benefits.
38 U.S.C. § 103(a); 38 C.F.R. § 3.52. "The determination of a claimant's knowledge of a legal impediment is viewed in terms of 'what the appellant's state of mind was at the time that the invalid marriage was contracted.'" See Lamour v. Peake, 544 F.3d 1317, 1323 (Fed. Cir. 2008) (quoting Dedicatoria, 8 Vet. App. at 444). In VA General Counsel Opinion 58-91, the Secretary stated that "the lack of knowledge requirement must have a broader meaning, encompassing lack of knowledge of the law prohibiting marriage, not just 'knowledge of the factual ground which activated the law.'" VA Gen. Coun. Prec. 5891 (June 17, 1991).
The surviving spouse of a deceased veteran is entitled to dependency and indemnity compensation benefits (DIC) when the veteran's death was not the result of his or her own willful misconduct and the veteran "was in receipt of or entitled to receive . . . compensation at the time of death for a service-connected disability rated totally disabling if . . . the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death . . . ." 38 U.S.C. § 1318(b)(1); see also 38 C.F.R. § 3.22(a). A surviving spouse is also entitled to dependency and indemnity compensation benefits where the deceased veteran had a disability that "was continuously rated totally disabling for a period of not less than five years from the date of such veteran's discharge or release from active duty" or where "the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death." 38 U.S.C. §§ 1318(b)(2)-(3); 38 C.F.R. § 3.22(a) (2).
As described above, a key to a spouse's eligibility for benefits after the death of a veteran is that the spouse was married to the veteran at the time of death. If a surviving spouse remarries after the death of a spouse, the issue of eligibility for benefits becomes complicated. If a remarriage has ended, the spouse is eligible for DIC. If still remarried, eligibility depends on when the spouse reached age 57, when the remarriage occurred, and whether a claim was pending on a certain date. This is a complicated area and VetFirst urges surviving spouses who have remarried to contact an experienced service officer or attorney to determine eligibility for their specific situation.
The child of a deceased veteran is entitled to DIC when the veteran dies as the result of service-connected disabilities. 38 U.S.C. §§ 1313, 1314. For purposes of determining eligibility for this benefit, a child must be unmarried and must
(1) be under the age of 18,
(2) have become permanently incapable of self-support before the age of 18, or
(3) be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution.
38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.356, 3.57(a)(1). Further, section 3.356 provides that the question of a child's permanent incapacity is one of fact for determination by VA, and that it will be decided on the basis of whether the child is "permanently incapable of self-support through his own efforts by reason of physical or mental defect" at the date of attaining the age of 18 years. 38 C.F.R. §§ 3.356(a), (b); Dobson v. Brown, 4 Vet. App. 443, 445 (1993). The Board's determination of permanent incapacity for self-support is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); 38 C.F.R. § 3.356(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).