Citation Nr: A21017137
Decision Date: 10/22/21	Archive Date: 10/22/21

DOCKET NO. 210623-167707
DATE: October 22, 2021

ORDER

Entitlement to monthly dependency and indemnity compensation (DIC) benefits in excess of currently awarded is denied.

FINDING OF FACT

The appellant is in receipt of monthly DIC at the rate of a surviving spouse with no dependents, no housebound allowance, and no aid and attendance benefit, and who was married to a Veteran who was rated totally disabled for at least 8 full years prior to his death.

CONCLUSION OF LAW

The criteria for monthly DIC benefits in excess of those already awarded have not been met. 38 U.S.C. §§ 1310, 1311 (2012); 38 C.F.R. §§ 3.5, 3.10, 3.21.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran service in active duty with the Marine Corps from February 1943 to January 1946. The Veteran died in November 2017, and the appellant is his surviving spouse.

The decision on appeal was issued in December 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. The appellant submitted an October 2020 request for a Higher-Level Review (HLR) to which the Agency of Original Jurisdiction (AOJ) issued a November 2020 HLR decision. A subsequent December 2020 rating decision was issued, and the appellant submitted a June 2021 10182 form selecting the Evidence option. 38 C.F.R. § 20.301.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2).

Entitlement to monthly dependency and indemnity compensation (DIC) benefits in excess of those already awarded

The appellant contends that she is entitled to benefits in excess of those already awarded. 

DIC is payable to a veteran's surviving spouse when the veteran dies from a service-connected disability. See 38 U.S.C. §§ 1310, 1311; 38 C.F.R. § 3.5 (a). For deaths occurring on or after January 1, 1993, the monthly rate of DIC for the surviving spouse shall be the amount set forth in 38 U.S.C. § 1311 (a)(1); however, from time to time, Congress authorizes cost of living adjustment for DIC benefits. See 38 C.F.R. § 3.10 (b). 

The rates of DIC for surviving spouses are published in Appendix B of VA Manual M21-1 and is given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21.

Pursuant to 38 U.S.C. § 1311 (a)(2), an increased DIC amount, commonly called "enhanced" DIC, will be paid by VA to the surviving spouse of a deceased veteran who, at the time of death, was in receipt of or was entitled to receive (or, but for the receipt of retired pay or retirement pay, was entitled to receive) compensation for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death. See 38 U.S.C. § 1311 (a)(2); 38 C.F.R. § 3.10 (c). 

The Board notes that the Veteran's was awarded a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities and therefore rated as 100 percent disabling for at least eight full years prior to his death; therefore the appellant is eligible for enhanced DIC.

In addition, the monthly rate of DIC will be increased by the amount specified in 38 U.S.C. § 1311 (b) if the surviving spouse has children of a deceased veteran who are below the age of eighteen. The basic monthly rate will be increased by the amount specified in 38 U.S.C. § 1311 (c) if the surviving spouse is a patient in a nursing home or blind, or so nearly blind or significantly disabled as to need or require the regular aid and attendance of another person. The basic monthly rate will be increased by the amount specified in 38 U.S.C. § 1311 (d) if the surviving spouse is, by reason of disability, permanently housebound but does not qualify for the aid and attendance allowance under subsection (c).

The appellant has not alleged, and the record does not show, that she is in need of aid and attendance, is in a nursing home, or is blind; is permanently housebound; or has any children below the age of 18. Thus, a higher rate of DIC is not warranted on these bases. 38 U.S.C. § 1311 (b)-(f).

Effective December 1, 2017, or the first of the month after the Veteran's death, the appellant is in receipt of DIC benefits in the amount of $1624.71. This includes the base monthly DIC benefit plus the "enhanced" benefit due to the TDIU award and therefore rated as totally disabling for at least eight full years prior to his death. See Veterans Benefits Administration, Survivor DIC Rates (https://www.va.gov/disability/survivor-dic-rates/).

Thus, the appellant is in receipt of the maximum monthly DIC at the rate of a surviving spouse with no dependents, no housebound allowance, and no aid and attendance benefit, and who was married to a Veteran who was rated totally disabled for at least eight full years prior to his death.

The sole basis for the appellant's appeal is her rationale that the Veteran would have qualified for a special compensation program for Veterans who were exposed to radiation and that the Veteran was in Nagasaki in 1945. Unfortunately, the rate of DIC payable to a beneficiary is set by law; as such, the appellant's statements do not establish entitlement to increased DIC absent a showing that the applicable legal criteria are met as discussed above. Accordingly, entitlement to monthly DIC benefits in excess of those already awarded is not warranted.

The Board is sympathetic to the appellant under these circumstances; however, it is bound by law and is without authority to grant benefits on an equitable basis. The statutory requirements for increased compensation under 38 U.S.C. § 1311 have not been met and the appellant's claim of entitlement to monthly DIC benefits in excess of those already awarded must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

 

 

MICHAEL LANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Yang, Attorney-Advisor

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.