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Dic For Widow Of Als Veteran


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#1 evandc

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Posted 21 July 2009 - 04:09 AM

Have widow of Vietnam Veteran that died several years ago of ALS. She has recently remarried & is 58-60 years old. Can't she file for DIC & other benefits since death was due to ALS? Another vet sent me email & I knew this vet but am not sure the exact date he died & she remarried. I can get all that & her age if needed to answer her question.

Thanks for your help,

Don

#2 ZenArcher

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Posted 21 July 2009 - 05:33 AM

I don't know the ins and outs of DIC but she can definitely file if the cause of death is listed as ALS. If the claim is submitted prior to September payment should be retroactive to September 08.

#3 Berta

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Posted 21 July 2009 - 06:23 AM

The newest reg on remarried widows is:

"In general, entitlement to VA benefits as a surviving spouse
terminates with the remarriage of the surviving spouse, and
cannot be reinstated until the subsequent marriage has ended,
such as by death, divorce, or annulment. See 38 U.S.C.A.
103(d); 38 C.F.R. 3.55.
Recent legislation has set forth
some limited exceptions, providing for specific benefits to
certain surviving spouses whose remarriages are still intact.
In the Veterans Benefits Act of 2002, retention of CHAMPVA
benefits was authorized for surviving spouses who remarried
after the age of 55. See Pub. L. 107-330, 101(a), 116
Stat. 2820 (2002) (codified at 38 U.S.C.A. 103(d)(2)(:angry:).
The following year, legislation was enacted, permitting
surviving spouses who remarried after the age of 57 to retain
additional VA benefits, such as DIC and dependents'
educational assistance. See Veterans Benefits Act of 2003,
Pub. L. 108-123, 101(a), 117 Stat. 2651 (2003) (codified at
38 U.S.C.A. 103(d)(2)(:o)."

I think the key word in this reg is " retain".
I get DIC and am over 57 so I could remarry and "retain" my established DIC because it was awarded long ago.

But for any widow who is not receiving DIC already- I do not think they can apply for and receive it as the spouse of someone else.

If I can find more info -will let you know.

#4 Pete53

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Posted 21 July 2009 - 07:44 AM

I did not think that ALS was automatic for Viet Nam only Gulf War?

#5 Berta

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Posted 21 July 2009 - 08:16 AM

ALS is a presumptive condition now for all veterans who served 90 days of continuous active service.

AL however is now on the Agent Orange presumptive list.

Many vet web sites were confused when these 2 different disabilities were found presumptive.I have a post here somewhere on the difference.

AL Vietnam veterans vets are class action members of the Nehmer Decisions.

#6 ZenArcher

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Posted 21 July 2009 - 11:44 AM

3.318 Presumptive service connection for amyotrophic lateral sclerosis

(a) Except as provided in paragraph (b) of this section, the development of amyotrophic lateral sclerosis manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease.

(b) Service connection will not be established under this section:

(1) If there is affirmative evidence that amyotrophic lateral sclerosis was not incurred during or aggravated by active military, naval, or air service;

(2) If there is affirmative evidence that amyotrophic lateral sclerosis is due to the veteran's own willful misconduct; or

(3) If the veteran did not have active, continuous service of 90 days or more.

(Authority: 38 U.S.C. 501(a)(1))

[73 FR 54693, Sept. 23, 2008]

#7 sharon

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Posted 21 July 2009 - 12:23 PM

38 CFR 3.55

(9) Benefits under 38 U.S.C. 1781 for a surviving spouse who remarries after age 55. (i) On or after February 4, 2003, the remarriage of a surviving spouse after age 55 shall not bar the furnishing of benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781, subject to the limitation in paragraph (a)(9)(ii) of this section.



(ii) A surviving spouse who remarried after the age of 55, but before December 6, 2002, may be eligible for benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781 pursuant to paragraph (a)(9)(i) only if the application for such benefits was received by VA before December 16, 2004. (Authority: 38 U.S.C. 103).



(10) Benefits for a surviving spouse who remarries after age 57.



(i) On or after January 1, 2004, the remarriage of a surviving spouse after the age of 57 shall not bar the furnishing of benefits relating to dependency and indemnity compensation under 38 U.S.C. 1311, medical care for survivors and dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37, subject to the limitation in paragraph (a)(10)(ii) of this section.



(ii) A surviving spouse who remarried after the age of 57, but before December 16, 2003, may be eligible for dependency and indemnity compensation under 38 U.S.C. 1311, medical care for survivors and dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37 pursuant to paragraph (a)(10)(i) only if the application for such benefits was received by VA before December 16, 2004. (Authority: 38 U.S.C. 103).

#8 Pete53

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Posted 21 July 2009 - 02:24 PM

Thanks to all who helped clarify this issue. I certainly learned a lot from this thread.

#9 evandc

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Posted 21 July 2009 - 03:21 PM

Thanks for all the replies. I've been out today & didn't read earlier. Will pass info to my vet friend & he can send to the widow. Then she can check on the benefits for herself. Really feel bad about this case as the vet, a Vietnam Veteran was really "ate up" with PTSD & only had (I think) 30% S/C at time of death. It's all coming back, Tet '68, Lt. next to him shot killed & somehow we found the name & info on that Lt. Just came back to me as I was typing the previous sentence. Damn PTSD & long term, short term memory are something else.

Thanks again, any more comments, info welcomed,

Don

#10 deltaj

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Posted 21 July 2009 - 10:41 PM

The newest reg on remarried widows is:

"In general, entitlement to VA benefits as a surviving spouse
terminates with the remarriage of the surviving spouse, and
cannot be reinstated until the subsequent marriage has ended,
such as by death, divorce, or annulment. See 38 U.S.C.A.
103(d); 38 C.F.R. 3.55.
Recent legislation has set forth
some limited exceptions, providing for specific benefits to
certain surviving spouses whose remarriages are still intact.
In the Veterans Benefits Act of 2002, retention of CHAMPVA
benefits was authorized for surviving spouses who remarried
after the age of 55. See Pub. L. 107-330, 101(a), 116
Stat. 2820 (2002) (codified at 38 U.S.C.A. 103(d)(2)(:lol:).
The following year, legislation was enacted, permitting
surviving spouses who remarried after the age of 57 to retain
additional VA benefits, such as DIC and dependents'
educational assistance. See Veterans Benefits Act of 2003,
Pub. L. 108-123, 101(a), 117 Stat. 2651 (2003) (codified at
38 U.S.C.A. 103(d)(2)(:angry:)."

I think the key word in this reg is " retain".
I get DIC and am over 57 so I could remarry and "retain" my established DIC because it was awarded long ago.

But for any widow who is not receiving DIC already- I do not think they can apply for and receive it as the spouse of someone else.

If I can find more info -will let you know.

If my husband died and I outlived him I would probably be receiving DIC under 38 U.S,C. 1318 as though his death was service connected because my husband's 100% rating has been in effect for more than 10 years. I think though that unless V.A. determined my husband's death was service connected I'd think twice about remarrying after age 57 because V.A. might discontinue my DIC and CHAMPVA benefits because of a lack of service connected death. I just don't trust V.A. to be fair.

#11 deltaj

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Posted 21 July 2009 - 10:57 PM

3.318 Presumptive service connection for amyotrophic lateral sclerosis

(a) Except as provided in paragraph (:lol: of this section, the development of amyotrophic lateral sclerosis manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease.

(:angry: Service connection will not be established under this section:

(1) If there is affirmative evidence that amyotrophic lateral sclerosis was not incurred during or aggravated by active military, naval, or air service;
decisi
(2) If there is affirmative evidence that amyotrophic lateral sclerosis is due to the veteran's own willful misconduct; or

(3) If the veteran did not have active, continuous service of 90 days or more.

(Authority: 38 U.S.C. 501(a)(1))

[73 FR 54693, Sept. 23, 2008]

Did this veteran file a claim for service connection of this condition in his lifetime? Did this veteran file a notice of disagreement with any decision denied service connection for ALS during his lifetime? Was this veteran's death from the condition after September 23, 2008, the date this regulation was published in the Federal Register? I ask these questions because of liberalizing law. I believe it would be useful for you to review the concept of liberalizing law as found in some V.A. General Counsel Precedent Opinions and at the U.S. Court of Appeals for Veterans Claims. Has this veteran's widow filed a claim yet for Dic and if so did she indicate on that claim that yes, the veteran's death was service connected? Did she attach a certified copy of his death certificate showing the cause of death as ALS?

Edited by deltaj, 21 July 2009 - 11:08 PM.


#12 evandc

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Posted 22 July 2009 - 12:52 AM

Delta,

All I know about this veteran is: he was Vietnam Veteran, 30% S/C for PTSD, died about 4 years ago from ALS, widow remarried last year, has not filed. A friend of mine, friend of vet & widow asked if she would qualify for DIC since ALS is now presumptive service connection. That's how I got to this point. I will ask for more info & pass it along. Really appreciate your input. I have never met this lady & just trying to get info for friend to pass along & let her ask an expert about filing a claim.

More later,

Don

#13 Berta

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Posted 22 July 2009 - 07:37 AM

Sharon-thanks for what seems to definitely be a more updated regulation that what I posted.

I saw the word "retain' in the reg I posted but this newer reg seems to indicate that the criteria is not whether DIC had already been awarded but only if the DIC claim was filed prior to the Dec 16 2004 date and if the remarriage was prior to Dec 16 2003.

That might be a difficult criteria for some widows or widowers to fulfill.

The Dec 2003 date arose I believe from the Bonny V Principi decision- but I dont get the connection to Bonny.

Except that Bonny provided ALL accrued benefits to a surviving spouses for claims pending at time of death of the veteran-for deaths occurring prior to Dec 16,2003-
but accrued benefits are governed by statute-maybe that is the connection-

the claim for accrued must be filed within one year of the veteran's death and is part of the 21-534 DIC form.

Nehmer class action widows however get ALL accrued regardless of when AO death occurred.

#14 deltaj

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Posted 28 August 2009 - 04:19 AM

Delta,

All I know about this veteran is: he was Vietnam Veteran, 30% S/C for PTSD, died about 4 years ago from ALS, widow remarried last year, has not filed. A friend of mine, friend of vet & widow asked if she would qualify for DIC since ALS is now presumptive service connection. That's how I got to this point. I will ask for more info & pass it along. Really appreciate your input. I have never met this lady & just trying to get info for friend to pass along & let her ask an expert about filing a claim.

More later,

Don

I think she should apply for DIC. I realize she is remarried but if you search under DIC and eligiblity there are fact sheets mentioning eligibility for DIC by a surviving spouse if that surviving spouse remarries on or after December 16, 2003 or after age 57. I think it may depend somewhat on the effective date of the regulation on ALS. This woman definitely should apply for DIC.