[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: 38CFR3.5]
[Page 152-153]
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. 3.5 Dependency and indemnity compensation.
(a) Dependency and indemnity compensation. This term means a monthly
payment made by the Department of Veterans Affairs to a surviving
spouse, child, or parent:
(1) Because of a service-connected death occurring after December
31, 1956, or
(2) Pursuant to the election of a surviving spouse, child, or
parent, in the case of such a death occurring before January 1, 1957.
(Authority: 38 U.S.C. 101 (14))
(b) Entitlement. Basic entitlement for a surviving spouse, child or
children, and parent or parents of a veteran exists, if:
(1) Death occurred on or after January 1, 1957, except in the
situation specified in Sec. 3.4(c)(2); or
(2) Death occurred prior to January 1, 1957, and the claimant was
receiving or eligible to receive death compensation on December 31, 1956
(or, as to a parent, would have been eligible except for income), under
laws in effect on that date or who subsequently becomes eligible by
reason of a death which occurred prior to January 1, 1957; or
(3) Death occurred on or after May 1, 1957, and before January 1,
1972, and the claimant had been ineligible to receive dependency and
indemnity compensation because of the exception in subparagraph (1) of
this paragraph. In such case dependency and indemnity compensation is
payable upon election. (38 U.S.C. 410, 416, 417, Public Law 92-197, 85
Stat. 660)
(c) Exclusiveness of remedy. No person eligible for dependency and
indemnity compensation by reason of a death occurring on or after
January 1, 1957, shall be eligible by reason of such death for death
pension or compensation under any other law administered by the
Department of Veterans Affairs, except that, effective November 2, 1994,
a surviving spouse who is receiving dependency and indemnity
compensation may elect to receive death pension instead of such
compensation.
(Authority: 38 U.S.C. 1317)
(d) Group life insurance. No dependency and indemnity compensation
or death compensation shall be paid to any surviving spouse, child or
parent based on the death of a commissioned officer of the Public Health
Service,
[[Page 153]]
the Coast and Geodetic Survey, the Environmental Science Services
Administration, or the National Oceanic and Atmospheric Administration
occuring on or after May 1, 1957, if any amounts are payable under the
Federal Employees' Group Life Insurance Act of 1954 (Pub. L. 598, 83d
Cong., as amended) based on the same death.
(Authority: Sec. 501(c)(2), Pub. L. 881, 84th Cong. (70 Stat. 857), as
amended by Sec. 13(u), Pub. L. 85-857; (72 Stat. 1266); Sec. 5, Pub. L.
91-621 (84 Stat. 1863))
(e) Surviving spouses' rate. (1) When death occurred on or after
January 1, 1993, the monthly rate of dependency and indemnity
compensation for a surviving spouse shall be the amount set forth in 38
U.S.C. 1311(a)(1). This rate shall be increased by the amount set forth
in 38 U.S.C. 1311(a)(2) in the case of the death of a 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 evaluated as
totally disabling for a continuous period of at least eight years
immediately preceding death. In determining the eight year period, only
periods during which the veteran was married to the surviving spouse
shall be considered. The resulting rate is subject to increase as
provided in paragraphs (e) (3) and (4) of this section.
(2) The monthly rate of dependency and indemnity compensation for a
surviving spouse when the death of the veteran occurred prior to January
1, 1993, is based on the ``pay grade'' of the veteran, unless the
formula provided in paragraph (e)(1) of this section results in a
greater monetary benefit. The Secretary of the concerned service
department will certify the ``pay grade'' of the veteran and the
certification will be binding on the Department of Veterans Affairs. The
resulting rate is subject to increase as provided in paragraphs (e) (3)
and (4) of this section.
(Authority: 38 U.S.C. 1311(a) and 1321)
(3) If there is a surviving spouse with one or more children under
the age of 18 (including a child not in the surviving spouse's actual or
constructive custody and a child who is in active military, air, or
naval service), the total amount payable shall be increased by the
amount set forth in 38 U.S.C. 1311(b) for each child.
(4) If the surviving spouse is determined to be in need of regular
aid and attendance under the criteria in Sec. 3.352 or is a patient in a
nursing home, the total amount payable shall be increased by the amount
set forth in 38 U.S.C. 1311(c). If the surviving spouse does not qualify
for the regular aid and attendance allowance but is housebound under the
criteria in Sec. 3.351(f), the total amount payable shall be increased
by the amount set forth in 38 U.S.C. 1311(d).
[29 FR 10396, July 25, 1964, as amended at 35 FR 18661, Dec. 9, 1970; 37
FR 6676, Apr. 1, 1972; 39 FR 34529, Sept. 26, 1974; 44 FR 22717, Apr.
17, 1979; 58 FR 25561, Apr. 27, 1993; 58 FR 27622, May 10, 1993; 60 FR
18355, Apr. 11, 1995]
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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