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| Home >> VA Claims Resources >> VA Claims >> VA General Counsel Precedent Opinions |
VA General Counsel Precedent Opinions |
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PREC 8-00 Status of Surviving Spouse to Receive Death Benefits
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PREC 8-00 Status of Surviving Spouse to Receive Death Benefits Citation: Vet. Aff. Op. Gen. Couns. Prec. 8-00, VAOPGCPREC 8-00, 2000 QUESTIONS PRESENTED: The veteran's surviving spouse seeks eligibility for dependency and indemnity compensation (DIC) under 38 U.S.C. § 1304 and 38 C.F.R. § 3.54(c)(1). Where the veteran contracted a fatal disease during the first or second enlistment of three consecutive enlistments, may the date of termination of his last enlistment be considered the termination date of the enrollment in which the fatal disease was incurred? If the surviving spouse does not qualify for DIC, would the lapse of time between termination of the period of service and the date of the surviving spouse's marriage to the veteran be a bar to an award of death pension to the surviving spouse? HELD: In a case where the veteran served consecutive enlistments and was discharged from each under conditions other than dishonorable, if the veteran was unconditionally dis- charged from the earlier enlistments at the end of the obligated periods of service, then the veteran's enlistments would be considered distinct periods of service for purposes of determining eligibility for VA compensation or pension benefits. However, if the veteran's discharges from the earlier enlistments are considered conditional discharges under 38 C.F.R. § 3.13(a), then the consecutive enlistment periods ending in discharges under conditions other than dishonorable may be considered one period of service under 38 C.F.R. § 3.13(b) for purposes of determining eligibility for VA compensation or pension benefits. Under 38 U.S.C. § 1541(f) and 38 C.F.R. § 3.54(a), where a surviving spouse married a Vietnam-era veteran on or after May 8, 1985, was married to the veteran for less than one year, and had no child with the veteran, the surviving spouse is barred from eligibility for death pension benefits based on the marriage to the veteran, notwithstanding the veteran's wartime service. |
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