Death Benefits Lawyer: Appeals for Denied VA DIC Claims

Reviewed by Eric Gang, Managing Attorney and Founder

Losing a loved one who served our country is devastating. Navigating a denial from the Department of Veterans Affairs for Dependency and Indemnity Compensation (DIC) shouldn’t add to your hardship.

If you are a surviving spouse, child, or parent of a veteran, you may be entitled to tax-free monthly VA death benefits under 38 U.S.C. § 1310 or 38 U.S.C. § 1318. If the VA denied your initial DIC claim or refused to recognize service connection for the cause of death, an experienced death benefits lawyer at Gang & Associates can help you appeal and secure the full retroactive compensation your family deserves.

Understanding VA Survivor Benefits: DIC vs. Survivors Pension

The VA offers distinct benefit programs for surviving family members, depending on the veteran’s service history and cause of death:

• Dependency and Indemnity Compensation (DIC): A tax-free monthly monetary benefit paid to eligible survivors when a veteran’s death is service-connected, or when the veteran was rated 100% disabled for a specific time prior to death.

• VA Survivors Pension: A needs-based monthly payment available to low-income surviving spouses and unmarried children of wartime veterans whose deaths were not service-connected.

• Ancillary Survivor Benefits: Eligible survivors may also qualify for CHAMPVA healthcare, Dependents’ Educational Assistance (DEA / Chapter 35), VA home loan eligibility, and burial benefits.

When Should I File a Claim for Death or DIC Benefits?

Keep in mind that there is no time requirement for filing a DIC claim. But if the DIC claim is received within one year of the veteran’s death, the back-pay award for the benefits would go back to the first day of the month following the month in which the veteran died. Even if the claim for the underlying disability was made during the veteran’s lifetime and denied, the surviving spouse can still file the claim for DIC and the VA must consider it as a brand-new claim.

Who Qualifies for VA DIC Benefits?

Qualifying as a Surviving Spouse

To qualify for DIC as a surviving spouse under 38 C.F.R. § 3.54, you must prove a valid legal marriage to the veteran and satisfy at least one of the following duration rules:

• You were married to the veteran for at least 1 year immediately preceding their death; OR
• You had a child together with the veteran (either before or during the marriage); OR
• You married the veteran within 15 years of discharge from the period of service during which the qualifying injury or disease occurred.

Note on Separation & Remarriage: You must have lived continuously with the veteran until death (unless separation was caused by the veteran’s misconduct or medical conditions like severe PTSD). If you remarried, you may still retain DIC eligibility if you remarried on or after reaching age 55 (or age 57 for remarriages occurring between Dec 16, 2003, and Jan 4, 2021).

Can I Still Qualify for Spousal Benefits if I did Not Live with the Veteran for at Least One Year?

With respect to the requirement that you cohabitate with the veteran there are exceptions to the co-habitation requirement if the separation was due to the misconduct or the actions of the Veteran. In the experience of our veteran’s benefits attorneys, a veteran may be suffering from extreme cases of PTSD or other psychiatric problems which make living with him or her difficult or impossible. A surviving spouse might also live apart from the veteran for business reasons. Therefore, a separation occurring under these circumstances don’t have to impair a surviving spouse’s ability to qualify for death benefits.

Child of a Veteran

If you are the child of a veteran, you may qualify for death benefits if you are not included in the surviving spouses DIC, you are unmarried, meet certain age requirements and are attending school. In order to receive death benefits, you will need to provide certain evidence about the veteran, their service and their death.

Parent of a Veteran

If you are the parent of a service member who died in the line of duty or a service-related injury or illness, you may qualify for DIC benefits. You must be the biological, adoptive or foster parent of the service member and have income below a certain level. In order to receive death benefits, you will need to prove that the cause of death was service connected.

Establishing Service Connection for Cause of Death

To win a DIC claim, you must demonstrate that a service-connected condition was the direct or contributory cause of death.

1. Direct Cause of Death (38 U.S.C. § 1310): The primary condition listed on the death certificate (e.g., service-connected lung cancer) directly caused death.
2. Contributory Cause of Death: A service-connected disability contributed “substantially or materially” to the death (e.g., service-connected PTSD or medication complications worsening a fatal heart condition).
3. Automatic DIC via Total Disability (38 U.S.C. § 1318): Even if the cause of death was non-service-connected, you qualify for full DIC if the veteran was rated 100% disabled or TDIU for:

• At least 10 continuous years prior to death; OR
• Continuously for at least 5 years from the date of discharge; OR
• At least 1 year prior to death if the veteran was a former prisoner of war (POW).

Why Did the VA Deny My Death Benefit or DIC Claim?

If you have been denied death benefits, you know how frustrating it can be to deal with VA. Oftentimes, their denial of your claim seems arbitrary but here are some common reasons why death benefits are denied.

How Can a Lawyer Help Me Get VA Death Benefits?

In general, winning these types of claims involves aggressive representation and advocacy by a veteran’s benefits attorney and the utilization of high-qualified medical experts. Frequently, the actual cause of death may be misdiagnosed and there may be a lot of evidence that is missing. That is why these cases require expert analysis by an experienced death benefits lawyer and review by well-qualified medical experts.

If you are the surviving spouse of a deceased veteran and your claim for DIC benefits has been denied, then we urge you to take a moment to contact our office to determine if there is something our veteran’s benefits attorneys can do to help you.