[Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR3.22]

[Page 164-165]
 
            TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
 
                CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
 
PART 3--ADJUDICATION--Table of Contents
 
     Subpart A--Pension, Compensation, and Dependency and Indemnity 
                              Compensation
 
Sec. 3.22  DIC benefits for survivors of certain veterans rated totally 
disabled at time of death.

    (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 who died after September 30, 1999.


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

    (b) For purposes of this section, ``entitled to receive'' means that 
at the time of death, the veteran had service-connected disability rated 
totally disabling by VA but was not receiving compensation because:
    (1) VA was paying the compensation to the veteran's dependents;
    (2) VA was withholding the compensation under authority of 38 U.S.C. 
5314 to offset an indebtedness of the veteran;
    (3) The veteran had applied for compensation but had not received 
total disability compensation due solely to clear and unmistakable error 
in a VA decision concerning the issue of service connection, disability 
evaluation, or effective date;
    (4) The veteran had not waived retired or retirement pay in order to 
receive compensation;
    (5) VA was withholding payments under the provisions of 10 U.S.C. 
1174(h)(2);
    (6) VA was withholding payments because the veteran's whereabouts 
was unknown, but the veteran was otherwise entitled to continued 
payments based on a total service-connected disability rating; or
    (7) 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 
(Sec. 4.16 of this chapter).
    (d) To be entitled to benefits under this section, a surviving 
spouse must have been married to the veteran--

[[Page 165]]

    (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 Sec. 3.54. Homicide. See 
Sec. 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]

Editorial Note: For Federal Register citations affecting Sec. 3.1, see the List of Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access.




PART I -- DEPT OF VA       CFR





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