38 C.F.R. § 3.22

DIC benefits for survivors of certain veterans rated totally disabled at time of death

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(a) Even though a veteran died of non-service-connected causes, VA will pay death benefits to the surviving spouse or children in the same manner as if the veteran's death were service-connected, if:

(1) The veteran's death was not the result of his or her own willful misconduct, and

(2) At the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was:

(i) Rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death;

(ii) Rated by VA as totally disabling continuously since the veteran's release from active duty and for at least 5 years immediately preceding death; or

(iii) Rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death, if the veteran was a former prisoner of war.

(Authority: 38 U.S.C. 1318(b))

(b) For purposes of this section, “entitled to receive” means that the veteran filed a claim for disability compensation during his or her lifetime and one of the following circumstances is satisfied:

(1) The veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified in paragraph (a)(2) of this section but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime; or

(2) Additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) of this part for the relevant period specified in paragraph (a)(2) of this section; or

(3) At the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for the period specified in paragraph (a)(2), but was not receiving compensation because:

(i) VA was paying the compensation to the veteran's dependents;

(ii) VA was withholding the compensation under authority of 38 U.S.C. 5314 to offset an indebtedness of the veteran;

(iii) The veteran had not waived retired or retirement pay in order to receive compensation;

(iv) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2);

(v) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or

(vi) VA was withholding payments under 38 U.S.C. 5308 but determines that benefits were payable under 38 U.S.C. 5309.

(c) For purposes of this section, “rated by VA as totally disabling” includes total disability ratings based on unemployability (§ 4.16 of this chapter).

(d) To be entitled to benefits under this section, a surviving spouse must have been married to the veteran—

(1) For at least 1 year immediately preceding the date of the veteran's death; or

(2) For any period of time if a child was born of the marriage, or was born to them before the marriage.

(Authority: 38 U.S.C. 1318)

(e) Effect of judgment or settlement. If a surviving spouse or child eligible for benefits under paragraph (a) of this section receives any money or property pursuant to a judicial proceeding based upon, or a settlement or compromise of, any cause of action or other right of recovery for damages for the death of the veteran, benefits payable under paragraph (a) of this section shall not be paid for any month following the month in which such money or property is received until the amount of benefits that would otherwise have been payable under paragraph (a) of this section equals the total of the amount of money received and the fair market value of the property received. The provisions of this paragraph do not apply, however, to any portion of such benefits payable for any period preceding the end of the month in which such money or property of value is received.

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

(f) Social security and worker's compensation. Benefits received under social security or worker's compensation are not subject to recoupment under paragraph (e) of this section even though such benefits may have been awarded pursuant to a judicial proceeding.

(g) Beneficiary's duty to report. Any person entitled to benefits under paragraph (a) of this section shall promptly report to the Department of Veterans Affairs the receipt of any money or property received pursuant to a judicial proceeding based upon, or a settlement or compromise of, any cause of action or other right of recovery for damages for the death of the veteran. The amount to be reported is the total of the amount of money received and the fair market value of property received. Expenses incident to recovery, such as attorney's fees, may not be deducted from the amount to be reported.

(h) Relationship to survivor benefit plan. For the purpose of 10 U.S.C. 1448(d) and 1450(c) eligibility for benefits under paragraph (a) of this section shall be deemed eligibility for dependency and indemnity compensation under 38 U.S.C. 1311(a).

(Authority: 38 U.S.C. 1318) Cross References:

Marriage dates. See § 3.54. Homicide. See § 3.11.

[44 FR 22718, Apr. 17, 1979, as amended at 48 FR 41161, Sept. 14, 1983; 53 FR 23235, June 21, 1988; 54 FR 31829, Aug. 2, 1989; 65 FR 3391, Jan. 21, 2000; 65 FR 43699, July 14, 2000; 70 FR 72220, Dec. 2, 2005; 77 FR 40526, July 10, 2012]

Notes of Decisions

Cited in 61 cases (3 in the last 5 years), 1993–2021 · leading case: Nat'l Org. Of Vets. Advocates v. Secr'y Of Vets. Affairs, 260 F.3d 1365 (Fed. Cir. 2001).

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Nat'l Org. Of Vets. Advocates v. Secr'y Of Vets. Affairs, 260 F.3d 1365 (Fed. Cir. 2001). · cites it 7× “at 115 (discussing and interpreting the language of 38 C.F.R. 3.22); Carpenter, 11 Vet. App. at 145 (recognizing that the result in Green hinged in part on the interpretation of the regulation); Wingo, 11 Vet.”

Nat'l Org. of Vets.' Advocates, Inc., & Paralyzed Vets. of Am. v. Sec'y of Vets. Affairs, 314 F.3d 1373 (Fed. Cir. 2003). · cites it 12× “In NOVA I we found that the January 2000 revision of 38 C.F.R. § 3.22 was arbitrary and capricious because it was inconsistent with 38 C.”

Nat'l Org. of Vets.' Advocates, Inc. v. Sec'y of Vets. Affairs, 260 F.3d 1365 (Fed. Cir. 2001). · cites it 33× “, (“NOVA”), Disabled American Veterans (“DAV”), and Paralyzed Veterans of America (“PVA”) (collectively, “petitioners”), challenge the validity of a regulation promulgated by the Department of Veterans Affairs, 38 C.F.R. § 3.22 (2000). 1 That regulation, as revised in January…”

Green v. Brown, 10 Vet. App. 111 (Vet. App. 1997). · cites it 9× “§ 1318 and 38 C.F.R. § 3.22 (1995) [hereinafter section 1318 DIC].”

Maria R. Rodriguez v. R. James Nicholson, 19 Vet. App. 275 (Vet. App. 2005). · cites it 12× “The issue on appeal is whether a January 2000 amendment to regulation 38 C.F.R. § 3.22 to bar a “hypothetical” entitlement theory for section 1318 DIC claims, which amendment occurred while the appellant’s section 1318 DIC claim was pending at the Department of Veterans Affairs…”

Timberlake v. Gober, 14 Vet. App. 122 (Vet. App. 2000). · cites it 3× “268, 274 (1999); see also 38 C.F.R. § 3.22 (a) (1999); DIC Benefits for Survivors of Certain Veterans Rated Totally Disabled at Time of Death, 65 Fed.”

Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). · cites it 4× “That decision overturned a ruling by the Board of Veterans’ Appeals (“the Board”) and held that application of 38 C.F.R. § 3.22 , as amended in January 2000, to a DIC claim pending prior to the amendment, took away a substantial right.”

Carpenter v. West, 11 Vet. App. 140 (Vet. App. 1998). · cites it 5× “§ 1318 and 38 C.F.R. § 3.22 (1997) as to service connection.”

Wingo v. West, 11 Vet. App. 307 (Vet. App. 1998). · cites it 6× “Section 1318(b) provides for the payment of DIC, as if the cause of death were service connected, where the veteran has died under the following conditions: [N]ot as the result of [his or her] own willful misconduct, and [where he or she] was in receipt of or entitled to receive…”

John R. Ramsey Et Al. v. R. James Nicholson, 20 Vet. App. 16 (Vet. App. 2006). · cites it 2× “§ 1318 , the Federal Circuit determined "that it would be inappropriate for the agency to further process claims under section 1318 until the validity or invalidity of the regulation [( 38 C.F.R. § 3.22 )] is finally established.”

Nat'l Org. of Vets.' Advocates, Inc. v. Sec'y of Vets. Affairs, 476 F.3d 872 (Fed. Cir. 2007). · cites it 5× “10 (f)(3) (2006); 38 C.F.R. § 3.22 (b) (2006). 5 The new regulations interpret “entitled to receive” to include situations where, during the veteran’s lifetime, the claim could have been reopened based on CUE, and also where reopening could have occurred based on new evidence…”

Cole v. West, 13 Vet. App. 268 (Vet. App. 1999). · cites it 6× “or correction of a rating after the veteran’s death based on clear and unmistakable error) was not in receipt of but would have been entitled to receive compensation at the time of death for a service-connected disablement that either: (i) Was continously [sic] rated totally…”

Show all 61 citing cases →

— 38 C.F.R. § 3.22(b) — 1 case

10-40 642 (Board of Vet. App. 2014).

— 38 C.F.R. § 3.22(b)(1) — 1 case

Nat'l Org. Of Vets. Advocates v. Secr'y Of Vets. Affairs, 260 F.3d 1365 (Fed. Cir. 2001). “at 115 (discussing and interpreting the language of 38 C.F.R. 3.22); Carpenter, 11 Vet. App. at 145 (recognizing that the result in Green hinged in part on the interpretation of the regulation); Wingo, 11 Vet.”

— 38 C.F.R. § 3.22(b)(3) — 1 case

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