When The Veteran Passes Away, Which Family Members Can Get VA Benefits?

*This is part 2 of my most recent blog, “VA Benefits For Family Members.”

                Only certain family members are eligible for VA benefits when the veteran dies.  In my previous blog I focused on DIC, or Dependency Indemnity Compensation, which is the focus of this blog also.  But before we even get to that, it must first be established that the person who served in the military WAS a veteran, which is generally defined as someone who served on active duty and was discharged under other than dishonorable conditions.  This information can usually be determined by looking at the veteran’s discharge document, or Form DD214.  Once this is nailed down, the survivor needs to make sure he falls into one of the following categories if he wants to get DIC from the VA (if you aren’t sure what DIC is, please read my most recent blog, “VA Benefits For Family Members” and then come back here).  Here is the link: https://veteranspractice.com/2020/09/24/va-benefits-for-family-members.       

Spouse.  The first question the VA must answer is whether the marriage was valid.  To determine this the VA looks at the law of the place where the couple lived, where they lived when they married, or where they lived when the right to VA benefits arose.  For example, if the couple never officially married, the VA will determine if they lived in a state where common law marriage is legal, and if so treat the marriage as valid.  The couple must also have been “free to marry” each other, meaning they were not married before or if they were, the previous marriage was void or ended in divorce, death, or annulment.  You might be surprised at how often people get married without ever officially ending a previous marriage.  The VA will make sure this isn’t the case. Survivors who were in a same-sex marriage are eligible for DIC just like everyone else, provided all other requirements are met. 

                The couple must have lived together for at least one year immediately before the veteran’s death if they never had children, or for any length of time if they did have children.  This “living together” requirement does not mean the couple could not have separated at times during the marriage, as long as they are no longer estranged when the veteran dies.  Also, there are exceptions to the rule that the couple was living together when the veteran died, for example if they lived apart for medical or business reasons.  If they were not living together when the veteran died due to marital problems, it cannot be the surviving spouse’s fault.  The one-year marriage requirement does not apply at all if the marriage took place before or during the veteran’s service.  It also does not apply if the couple married within 15 years of the veteran’s in-service injury that caused or aggravated her death. 

Things get messy when the survivor remarries after the veteran’s death – too messy to discuss here in a way that won’t make you want to lay down and cry.  Rather than try to explain all of the rules about remarriage after the veteran’s death, I encourage anyone who has questions about their specific situation to call me.  I am happy to help sort it out and give you some guidance on your options and eligibility for DIC. 

Dependent Parent or Surviving Parent.  Natural, adoptive, and step parents may qualify for DIC, in addition to anyone who was in a parent relationship with the veteran (such as a grandparent) for at least one year before the veteran’s military service.  Also, the parent must have been financially dependent on the veteran or have income below a certain level to qualify. 

Child.  The person must be a biological, adopted, or stepchild of the veteran to get DIC.  The child cannot be married and must either be under 18 or between 18 and 23 if in school.  An unmarried child over age 18 and not in school must have become permanently incapable of supporting themselves before age 18 to qualify.  Grandchildren are not eligible to get DIC unless the veteran legally adopted them.   

Other family members.  Generally speaking, no other family members aside from the ones listed above are eligible for DIC.  The purpose of DIC is to provide the veteran’s surviving dependents with a monthly cash benefit so they have some security when the veteran dies, so it normally makes sense that siblings, aunts, uncles, cousins, etc. would not qualify for this benefit. 

                The VA will not always take an applicant’s word for it that they are eligible for DIC.  To avoid any delays and unwarranted denials, I recommend including documents with the application to show the qualifying family relationship, such as marriage or birth certificates, proof that a child is in school, etc.

                The DIC rules and application process can be confusing but if you think you qualify, do not hesitate to go after these tax-free benefits.  And remember, if you have any questions, please reach out!    

VA Benefits for Family Members

            There are many benefits available to family members of deceased veterans. Two of these are Dependency and Indemnity Compensation (DIC) and death compensation. Both are available if the veteran’s death was service connected.  If granted, these programs pay the survivor a monthly, tax-free benefit.  Go to https://www.va.gov/disability/survivor-dic-rates to find current rates.

            DIC is for survivors of veterans who died on or after January 1, 1957, and death compensation is for survivors of veterans who died before that date.  Because most people are looking into benefits related to veterans who died after January 1, 1957, this blog will focus on DIC. 

            There are some circumstances under which the VA will consider the veteran’s death service connected, even if it wasn’t, and grant DIC.  Under the “ten-year rule,” if the veteran’s disability was rated by the VA as totally disabling for at least ten years before his death, it will be treated as service connected and survivors’ benefits will be granted.  For the “five-year rule” to kick in, the veteran’s disability must be rated totally disabling by the VA for at least five years from the date of the veteran’s discharge or other release from active duty.  The “one- year rule” applies when the veteran was a former prisoner of war and the disability was continuously rated totally disabling for at least one year before his death.  The term “totally disabling” means the veteran’s rating is 100% or she is in receipt of VA Unemployability.  (For more information about VA ratings, read my blog “VA Ratings: What Are They And How Do They Work?” and “VA Unemployability: What Is It And How Can a Veteran Get It?”).  Here are the links: https://veteranspractice.com/2019/07/17/va-ratings-what-are-they-and-how-do-they-work and https://veteranspractice.com/2019/09/20/va-unemployability-what-is-it-and-how-can-a-veteran-get-it.

            To apply for DIC, the survivor submits VA Form 21P-534 if they are a spouse or child and VA Form 21P-535 if they are a parent. Both forms are available online.  If the wrong form is used it’s okay because the VA is required to interpret ANY application on ANY document submitted to either VA or Social Security that shows the person wants to apply for survivors’ benefits as an application for DIC.  Sorry about the ALL-CAPS but this is important to keep in mind.  Many survivors don’t realize when they apply for survivors benefits through Social Security that they are ALSO applying for DIC and the VA MUST entertain that application and grant DIC if warranted.

            There is no deadline to apply for DIC but if the application is submitted within one year of the veteran’s death, the VA will pay the survivors’ benefits back to the first day of the month after the veteran’s death.  If the application goes in after that one-year mark, the VA will award DIC back to the first day of the month after the month they received it.  For example: the survivor applies for DIC on November 15, 2020, which is more than one year after the veteran died, so the VA will pay the survivor back to December 1, 2020, if the application is approved.

            When the rules I described in the second paragraph of this blog don’t apply, it must be shown that one or more of the veteran’s service-connected conditions caused or contributed to her death. The first place to look is the death certificate.  If a condition the veteran was service connected for is listed as a cause of death, the VA should grant the benefits without much problem.  If not, it’s time to think outside the box and determine if a service-connected condition contributed to the cause of death.  For example, in a well-known case, (El-Amin v. Shinseki) the Court of Appeals for Veterans Claims decided the veteran’s service connected post-traumatic stress disorder aggravated his non-service connected alcoholism, which caused or contributed to his death from cirrhosis, and granted the survivors’ benefits.  Another example is if the veteran died of a disease or illness that was not service connected, but had diabetes or another condition that was service connected.  If it can be shown, with the help of doctors, family members, etc. that the diabetes or other condition made it more difficult for the veteran to overcome the fatal illness, the VA will grant survivors’ benefits.                

            Of course, in order to take advantage of these benefit programs, the person applying must be an eligible family member.  This is actually more complicated than you might think!  In the interest of not making this the length of a Harry Potter novel, I decided to cover this topic in another blog I will post in the near future, so please stay tuned for that.  In the meantime, if you have any questions for me, please reach out.  All too often survivors of veterans find it difficult to get the help and answers they need to get the benefits they deserve.  I am happy to help if I can!   

            As always, thanks for reading.

VA Unemployability: What is it and how can a Veteran get it?

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             Veterans who cannot work because of service-connected disabilities can get VA unemployability, otherwise known as Total Disability Based on Individual Unemployability or, for short, TDIU.  TDIU means the veteran will get a monthly cash benefit at the 100% compensation amount.  For a single veteran with no dependents, that amount as of the date of this blog is $3057.13 per month (to see different rates depending on the veteran’s marital and dependent status just Google “VA compensation rates”). 

            To qualify for unemployability, a veteran must have service-connected conditions that make it “at least as likely as not” that she cannot work.  This standard is very low, and if there is any doubt, the benefit of the doubt goes to the veteran.  This sounds pretty simple so far, right?  Well hold onto your hats because things are about to get a little rocky. 

            The first way to get the VA to consider TDIU is if the veteran has certain ratings. Remember my last blog, VA Ratings: What are they and how do they Work? If not, stop reading this blog, read that one, and then come back here.  Here is the link:  https://veteranspractice.com/2019/07/17/va-ratings-what-are-they-and-how-do-they-work/.

           Ready?  Let’s continue.  So the veteran has to have either one service-connected disability rated at 60% or higher, or at least two service-connected disabilities with one rated at 40% or more, with a combined rating of at least 70%.  I often hear veterans say they can’t get TDIU because their ratings aren’t high enough.  This is NOT true!  If veterans have ratings that are not high enough, the Director for Compensation Service will look at the veteran’s unique case and decide if he qualifies for TDIU.  This second way to qualify is real.  It is the law.  But for some reason it seems to be a little known and doubted fact.

            If the ratings aren’t high enough, when does the second way to qualify come into play?  A common example is tinnitus, or ringing in the ears.  Regardless of how bad it is, the highest rating a veteran can get for tinnitus, for one or both ears, is 10%.  Tinnitus can be severely disabling and make work impossible.  In this case, the veteran’s ability to work is examined and decided on by the Director for Compensation Service.

            When deciding TDIU, the VA uses the average person standard, meaning that they ask: “If the average person had these disabilities, and they affected her in this way, would she likely be unable to work?” The VA also looks at the veteran’s work and education history and considers whether someone with that background, in light of their disabilities, would be able to get and keep a job.  The VA will also look at whether the veteran is getting Social Security disability for their service-connected disabilities.  If so, that might be a good indication that they cannot work. 

            To convince the VA that the veteran should get TDIU, it’s helpful to get statements from treating doctors, former employers, co-workers, family members – anyone who can verify and detail how the service-connected conditions make work impossible.  If the veteran is still working when he applies for TDIU, the VA will want to know if he is working in a “sheltered” workplace.  This means that the veteran works for a friend, family member, or someone else who is fully aware of his disabilities and makes accommodations for him.  The veteran can also work and still qualify for TDIU if she is earning less than the poverty threshold, even if it’s not a sheltered workplace. 

            Whether a veteran qualifies for TDIU depends on a variety of factors.  Because each veteran’s situation and disability picture are unique, the VA considers TDIU applications on a case-by-case basis.  To be successful in getting approved for TDIU, and avoiding the lengthy and often complicated appeals process, veterans should submit as much evidence of their unemployability as possible with their initial application, and use the correct form.  As of the date of this blog, that form is VA Form 21-8940, available online.                

Questions?  Contact Catherine Cornell, attorney at and owner of The Veterans Practice, Ltd. at catherine@veteranspractice.com or 708-668-6996.  As always, thanks for reading!

VA Ratings: What are They and how do They Work?

If a veteran has a service-connected disability, the VA will rate it according to the “Schedule for Rating Disabilities.” In this document, which is in the Code of Federal Regulations, the VA listed every disability or condition they could think of that might affect a veteran.  If a veteran’s disability is not listed, the VA will rate it by using a comparable disability.  The ratings range from 0% to 100% and are meant to compensate the veteran for how much the disability affects her ability to work.  The rating corresponds to how much compensation she will get each month.  For example, if a single veteran with no children is rated 50% for his disability, he will get (as of the date of this blog) $879.36 per month.  If the rating goes up to 100%, he will then get $3057.13 per month.  If the rating is 0% this means the VA agrees the disability is from service, but does not believe it affects the veteran’s ability to work.

                If the VA underrates a disability the veteran can appeal the rating.  If the rated disability gets worse, she can file a claim to increase it.  A claim for increase is stronger if a doctor or medical person of some kind writes a statement indicating that the disability has worsened and explains how so.  Statements from family members, co-workers, friends and the veteran herself explaining how the disability has worsened can also help.  In response to an increased rating claim the VA may schedule the veteran for a Compensation and Pension exam.  (For more on the ins and outs of this exam, see my blog from March 22, 2018 called How to Handle a VA C&P Examination).    

                All this sounds pretty straight forward, right?  Well put on your seat belts folks because things are about to get complicated as we move onto VA math.  When a veteran is rated for several disabilities, the VA does not add them together.  Instead, they combine the ratings.  For example, say a veteran has two disabilities, one rated at 30% and the other rated at 20%.  Using the VA’s method, 30% + 20% does NOT = 50%.  It actually equals 44%!  Don’t try to understand just trust me on this.  The combined rating is rounded up or down to the nearest whole number, so here it will be 40%.  Things get even more illogical the closer a veteran gets to 100%.  For example, if the veteran who has the 30% and 20% ratings then gets a 90% rating for another disability, her combined rating is 94%.  In this scenario her rating will be rounded down to 90%.  So even though 30% + 20% + 90% = 140%, her rating is actually 90% and her monthly benefit will be the 90% amount.  Yes, I know.  Don’t even try to make heads or tails of this.

                Finally, the VA can generally lower a veteran’s rating if they decide that a service-connected disability has improved.  One example is prostate cancer.  When it goes into remission, the VA will likely lower the rating. This usually makes sense.  However, sometimes the VA incorrectly lowers a rating and this has to be challenged or appealed.  One thing to remember, if a service connected condition causes another disability the veteran can file a new claim for that disability.  For example, if the prostate cancer rating is reduced but the cancer caused other conditions, the veteran could put in new claims for those new conditions and raise his overall rating.  For more on this, see my blog from May 14, 2018 titled, Secondary Service Connection: When a Service Connected Disability Causes a Second Disability

            Questions?  Feel free to contact Catherine Cornell at the Veterans Practice, Ltd.