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«PREREQUISITE Prior to this lesson, students should have completed the lessons on TRAINING Introduction to Development, and Developing Original Live ...»

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(10) TRAINEE HANDOUT

TRAINING FOR VSO LESSON TEN

DEPENDENCY – WHO AND HOW?

PREREQUISITE Prior to this lesson, students should have completed the lessons on

TRAINING Introduction to Development, and Developing Original Live Claims.

TOPIC You will:

OBJECTIVES

 Know who can be recognized as a dependent.

 Understand the effect that dependents have on the rate of payment of various VA benefits.

 Understand the different types of evidence that VA may request/require in order to establish a dependent.

TIME REQUIRED 1.25 hours  REFERENCES 38 CFR 3.1(j)  38 CFR 3.4(b)(2)  38 CFR 3.57-3.593  38 CFR 3.204-3.211  M21-1, Part III, Chapters 1,2, and 6  M21-1, Part IV, Chap. 12-15,16

WHO CAN BE A DEPENDENT?

Spouse: A spouse is a person of the opposite sex married to the veteran through a recognized legal or religious ceremony. 38 CFR 3.1(j) defines marriage as a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. If a legal marriage cannot be established, then the spouse cannot be recognized.

Child: 38 CFR 3.57 defines a “child” of the veteran as an unmarried person under the age of 18 who is a legitimate child, a child legally adopted before the age of 18 years, an unmarried stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death, or an unmarried illegitimate child. It goes on to say that a child can also be one who is between the ages of 18-22, unmarried and attending school (referred to as a “school-child”).

Additionally, 38 CFR 3.58 includes as a “child” one who is over the age of 18 and who, prior to Page 1 of 9 (10) TRAINEE HANDOUT reaching the age of 18, is found to be permanently incapable of self-support because of physical or mental disability and is unmarried (Referred to as a “helpless child”). {NOTE: grand- children may NOT be recognized as dependents unless formally adopted by the veteran or surviving spouse, even if they are living with and totally dependent upon the veteran for support.} Parent(s): 38 CFR 3.59 defines "parent" as a natural mother or father (including the mother of an illegitimate child or thefather of an illegitimate child if the usual family relationship existed), mother or father through adoption, or a person who for a period of not less than 1 year stood in the relationship of a parent to a veteran at any time before his or her entry into active service. It is important to note that only one of each parental line (father and mother) can be recognized in any one case.

DEPENDENCY AND BENEFITS – WHAT HAPPENS?

Compensation: In order for dependents to be a factor in compensation cases, the veteran must have a combined S/C evaluation of at least 30%. Veterans rated at less than 30% are not entitled to additional benefits for dependents. It is important to remember that, in compensation cases, the dependents themselves have no independent entitlement to benefits.

 Spouse: Once established as legal spouse, the veteran can receive additional compensation benefits for the spouse even if they don’t live together. However, if they are separated, the veteran must know of the whereabouts of the spouse in order to notify the VA of the death or divorce should it occur. If the whereabouts of the spouse are unknown, additional benefits are not payable.

 Child: Once established as the child of the veteran, additional compensation benefits are payable whether or not the child resides with the veteran. Child custody is irrelevant, but as in the case of the spouse, the veteran must know of the whereabouts of the child in order to report changes of status to VA.

 Parent(s): Once the relationship has been established, the parent(s) must then be found to be “dependent” upon the veteran for support. In this context, dependency can be established either by the income of the parent(s) or by contributions towards their support by the veteran. The income requirements are somewhat low, so it is uncommon for parental income to adversely affect entitlement to additional benefits, but keep in mind that, in order for additional compensation to be payable, the parent(s) must be found to be “dependent”.

Pension: As with compensation cases, keep in mind that the dependents in pension cases have no independent entitlement to pension benefits.

 Spouse: If the veteran is to receive additional pension benefits for a spouse, they must live together. If they do not, then the veteran must be contributing to the spouse’s support. Spousal income is included in countable income for benefit calculation unless it is found that the spousal income is not available to the veteran because of separation.

Page 2 of 9 (10) TRAINEE HANDOUT  Child: Similar to the spouse (above). The child must live with the veteran or, if not, the veteran must be contributing to the child’s support. The child’s income is included in countable income for benefit calculation unless the child is not in the veteran’s household and the child’s income is found to be unavailable to the veteran.





 Parent(s): There is no provision for additional pension benefits for parents. However, if the veteran is paying for the parent(s)’s medical expenses, they can be used to reduce countable income in the same fashion as if they were the veteran’s.

DIC:

 Surviving spouse: Must be established as the legal widow(er) of the veteran, and marriage must have begun at least one year before death. If not living with the veteran at time of death, the cause of separation cannot be the fault of the surviving spouse. If the veteran and spouse were not living together at the time of death, a “continuous cohabitation decision” may be required.

 Child: Must be established as a child of the veteran. If living with the surviving spouse (mother/father), the surviving spouse receives additional DIC on that basis. If there is no surviving spouse or the child is not in the custody of the surviving spouse, DIC is paid for the child to the custodian of the child. If over 18 and entitled to DIC, benefits paid directly to the child (“school-child” or “helpless child”).

 Parent(s): Parent’s DIC is similar to pension benefits in that income and net worth (in addition to relationship) determine entitlement. The rate of payment is based on countable income. The income limits are relatively low, so many parents are ineligible on that basis.

Death Pension:

 Surviving Spouse: Must be established as the legal widow(er) of the veteran, and marriage must have begun at least one year before death. If not living with the veteran at the time of death, the cause for the separation must not be that of the surviving spouse. If the veteran and spouse were not living together at the time of death, a “continuous cohabitation decision” may be required. Once established, must meet income and net worth requirements; rate of pension is determined by countable income.

 Child: Must be established as a child of the veteran. If living with the surviving spouse (mother/father), the spouse’s benefits are increased on that basis and the child’s income is included as countable income of the surviving spouse. If the child is not living with the surviving spouse, the additional benefits are paid for the child to the custodian of the child. If the child’s income is found to be unavailable to the surviving spouse because of the separation, the child’s income is not countable to the surviving spouse. Only in cases where there is NO surviving spouse does the child have independent entitlement to death pension benefits. In that circumstance, the child must meet separate income and net worth limits.

 Parent(s): There is no provision of the law that would permit payment of any benefits to the parent(s) of a veteran based on NSC death.

Page 3 of 9 (10) TRAINEE HANDOUT

Effective Dates: On original claims, if the dependents are listed on the application, we can include them from the effective date of the award, if otherwise eligible. If the evidence is incomplete and we ask for more evidence, we can add the dependents from the effective date of the award if the evidence is furnished within one year of the date of the letter requesting it.

Otherwise the dependents will be added from the date the evidence is received.

If the veteran’s compensation increases to an evaluation that includes additional benefits for dependents, he/she will be invited to claim the dependents when the award letter is sent. The veteran has one year to furnish the requested evidence to have the dependents added from the date of the increase. Otherwise, they will be added from the date the evidence is received.

If the veteran has a new dependent, such as the birth of a child, he/she has one year from the date of the event to notify us and we will adjust the benefit from the date of the event. If the evidence is received more than one year after the event, we will adjust the award from the date of the receipt of evidence.

Generally speaking, if a reduction in benefits is required due to the loss of a dependent, they will be removed at the end of the month in which the event occurs. For example, if the veteran’s divorce becomes final in June, we will remove the spouse from the award effective July 1. Note that if the veteran was being paid for a spouse and stepchildren as a result of the marriage, the stepchildren will be removed as dependents when the spouse is removed, unless the stepchild remains in the veteran’s custody and household.

A Note On Apportionments: Veterans’ dependents (spouse, child(ren), or even parent(s)) can, under certain circumstances, request an apportioned share of the veteran’s benefits be paid directly to them. In most cases, the request for apportionment will be predicated on the (claimed) non-support of the apportionee by the veteran. Factors affecting the amount of the benefit apportioned (assuming that the claim for apportionment is granted) include demonstrated need on the part of both parties, the total amount of the benefit payable, and the financial resources of both parties. Remember that the benefits belong to the veteran and are paid to him/her as compensation for disabilities incurred in association with active military service;

dependents do not have an inherent right to the benefits. An apportionment will not be granted if doing so will cause a hardship for the veteran. However, apportionments can never be established merely for convenience, such as child support or alimony payments, and decisions on alimony or child support made in a court of local jurisdiction are not binding on the VA.

You need to be aware of the potential for apportionments, and more importantly, how your representative capacity is affected by apportionments. If your organization holds POA for the veteran (hereinafter referred to as the “prime payee”) you cannot also represent the apportionee.

Many service organizations will not represent a spouse or anyone else claiming an apportioned share of the veterans benefits. Each VSO should check with their supervisor before assisting in a claim involving apportionments.

If you are representing a veteran whose dependents are claiming an apportioned share of his/her benefits, the veteran will be asked to account for his/her income and expenses. Assist the veteran in honestly reporting them and, if appropriate, furnish evidence that the veteran is contributing to his dependent’s support. If the veteran is paying child support or alimony as required by a court decision, it is unlikely that an apportionment will be made.

–  –  –

For VA benefit purposes, to establish a dependent, you must have three things:

1. Detailed information of the event

2. Detailed information of the relationship

3. Social Security number for each dependent Currently, VA will generally accept the veteran’s sworn statement alone to establish dependency so long as the statement does not conflict with other evidence of record. In other words, if the veteran states that he is married, provides the date (at least month and year) of the marriage, place of marriage (city and state), the full name, date of birth, and most importantly the Social Security number (SSN) of the spouse, VA will recognize the dependent and add the spouse to the award without requesting documentation. Likewise, if the veteran states that he/she has a child, provides the date and place of birth, the child’s full name and again, most importantly the child’s SSN, VA will recognize the child and add the child to the award without requesting additional documentation or evidence. Situations involving step-children or adopted children routinely require the submission of birth certificates or adoption papers before VA will recognize the dependent, however. In order to recognize a parent, VA requires a copy of the veteran’s birth certificate that clearly shows the names of both parents.

The above paragraph pertains only to simple, uncomplicated dependency issues. Keep in mind that VA reserves the right to request documentation of dependency if VA finds conflicting evidence, unclear statements, or any other situation where it feels that documentation is warranted. There are different categories or sources of evidence that can be acceptable proof of dependency when such proof is required.

Please refer to 38 CFR 3.209 as an example of the above. Note the seven (a-g) stated categories of acceptable proof of birth. The point here is that, when a regulation has a list in it, it is almost always a list of precedence, with the first item listed being considered the preferred evidence.

However, the preferred evidence is not required if the evidence received is sufficient to prove the essential point. Generally, there is no requirement that the documents submitted to prove dependency be certified copies unless otherwise stated by regulation. However, the copies submitted must be clear copies of the original document(s), free from erasure or correction.



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