a.  Does the condition in 38 U.S.C. § 5310(b)(1) that a deceased veteran’s surviving spouse not be entitled to death benefits under 38 U.S.C. ch. 11, 13, or 15 for the month of the veteran’s death require a decision on the merits of whether the surviving spouse is entitled to death benefits or may VA consider the condition satisfied based on the lack of a claim by the surviving spouse for death benefits?

b.  May a veteran’s surviving spouse apply for only the benefit provided by 38 U.S.C. § 5310(b)?  If so, may he or she use VA Form 21-534 for such a claim?

c.  If a claimant uses VA Form 21-534 to claim only the benefit provided by 38 U.S.C. § 5310(b), must VA also treat the claim as one for dependency and indemnity compensation, death pension, and accrued benefits?  What effect does Isenhart v. Derwinski, 3 Vet. App. 177 (1992), have on using VA Form 21-534?

d.  If a veteran’s surviving spouse is awarded the benefit provided under 38 U.S.C. § 5310(b) and later establishes entitlement to death benefits for the month of the veteran’s death at a rate higher than the veteran would have received in compensation or pension for that month if he or she had not died, is the surviving spouse still entitled to the section 5310(b) benefit?  What, if any, effect do 38 U.S.C. § 5111(c) and 38 C.F.R. §§ 3.20(b) and 3.31 have?

a.  Subsection (b) of section 5310, title 38, United States Code, as added by section 506 of the Veterans’ Benefits Improvements Act of 1996, Pub. L. No. 104-275, § 506, 110 Stat. 3322, 3343, provides a benefit for the month of a veteran’s death if the veteran’s surviving spouse is not entitled to death compensation, dependency of indemnity compensation, or death pension for the month of death.  It would be reasonable to interpret the condition of nonentitlement to death benefits as being satisfied by the lack of any claim for death benefits filed by the surviving spouse or by a decision on the merits on the question of whether the surviving spouse is entitled to death benefits for the month of death.  Whichever interpretation the Department of Veterans Affairs chooses to adopt, it should be adopted through properly issued regulations.

b.  A surviving spouse may apply for only the benefit provided by 38 U.S.C. § 5310(b) and may do so using any form VA prescribes for the purpose of applying for that benefit.  The form to be used should be prescribed by issuing an appropriate regulation.

c.  If, in accordance with VA’s prescription, a surviving spouse uses VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation If Applicable), to apply for only the benefit provided by 38 U.S.C. § 5310(b), VA need not consider the claim as one for dependency and indemnity compensation, death pension, or accrued benefits.

d.  The establishment of entitlement to death benefits for the month of death by surviving spouse who has already been paid the benefit provided by 38 U.S.C. § 5310(b) negates the entitlement to the section 5310(b) benefit.  If the surviving spouse is entitled to death benefits for the month of death at a rate higher than the rate of compensation or pension the veteran would have received for that month but for his or her death, 38 U.S.C. § 5111(c)(1) and 38 C.F.R. §§ 3.20(b) and 3.31 prohibit payment on the

death benefits award for any period before the first day of the month following the calendar month of death.