Hill & Ponton, P.A.

When a veteran dies, there are several different types of benefits to which his or her survivors may be entitled.  It is important to note that there are deadlines for applying for these types of benefits, so the veteran’s dependents should not delay in filing a claim.  Three main types of benefits may be applied for by filing just one claim form—accrued benefits, Dependency and Indemnity Compensation (DIC) benefits, and death pension. 

Accrued benefits are due to the veteran’s survivors for any amount which was due and unpaid to the veteran at the time of death.  This can mean that the veteran had received a rating decision but had not yet been paid for his retroactive benefits, but it can also mean that the veteran had a claim for disability benefits which had not yet been decided.  Where the veteran had a pending claim for benefits that should have been granted based on the evidence in the file, he was entitled to benefits, and his qualifying survivors may also be entitled to those benefits.  To receive accrued benefits, a survivor used to be required to file a new claim and begin all over again at the regional office.  New laws, however, allow the survivor to substitute into the veteran’s claim at the same point in the process that the veteran had reached, whether that is prior to a decision by the regional office or into an appeal at the Board of Veteran’s Appeals or the Court of Appeals for Veterans Claims. 

A second main type of benefits, DIC benefits, may be available to the survivors of a veteran whose death is related to a service-connected disability.  DIC benefits are not dependent on whether the veteran was owed benefits prior to death.  For example, if a service member died on active duty, DIC benefits may be available to the qualifying survivors.  Similarly, if the veteran had a service-connected disability which caused or contributed to the veteran’s death, the family may be entitled to DIC benefits. 

DIC benefits may be available even if the veteran had not yet been service-connected for the disability that caused or contributed to death where evidence in the file demonstrates entitlement to service connection.  For example, if a veteran served “boots on the ground” in the Republic of Vietnam during the Vietnam War, he is presumed to have been exposed to herbicides such as Agent Orange.  If the veteran then developed ischemic heart disease which eventually caused his death, his cause of death would be service connected because ischemic heart disease is on a list of diseases that the VA accepts as having been caused by herbicide exposure.  Therefore, even if that veteran never applied for compensation for his heart disease, his qualifying survivors may still be entitled to DIC benefits. 

Another way in which survivors may be entitled to DIC benefits is if the veteran was totally disabled by service connected disabilities for ten years prior to his death.  This is true even if the service connected disability did not cause or contribute to the veteran’s death.  Similarly, if the veteran was totally disabled at the time he was discharged and for at least five years prior to his death, the family may be entitled to DIC benefits. 

A third major type of benefits for survivors is the death pension.  Unlike the other two benefits we have discussed, entitlement to the death pension does not necessarily require that the veteran had service-connected disabilities or that they were related to his death.  This benefit is based on financial need and claimants must meet certain income requirements.  To qualify for the death pension, the veteran must have served at least 24 months of active duty (though there are some exceptions to this rule), at least one day of which was during a period of war.  Furthermore, the veteran’s character of discharge must be other than dishonorable.  The requirement for service during a period of war does not mean that the veteran must have actually engaged in combat.  In fact, any veteran who has served since August 1990 has served during a period of war as the Persian Gulf War has never officially been ended by Presidential proclamation or law. 

Other benefits may be available to the surviving family members of disabled veterans, such as health care, funeral expenses or home loan benefits.  There are many options for assistance–get help finding out whether you or your family qualifies for benefits.

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In both Social Security and VA Disability law, an issue that frequently arises is the use of drugs and/or alcohol.  Usually, the issue is raised because a disabled Social Security claimant or veteran is using drugs and/or alcohol at the same time they are trying to pursue a disability claim.  When asked about drugs and/or alcohol, some of my clients are often astonished that there is even mention of drugs or alcohol in their file.  So, in both Social Security and VA cases, the question usually becomes:  now that my record mentions drugs and/or alcohol, what can or should I do about it?

In the Social Security context, a problem with drugs and/or alcohol is almost always fatal to a successful outcome in the case.  The law says that the Social Security Administration (SSA) will look to see if alcohol or drug use is a contributing factor that is material to the disabling impairment(s). In other words, would SSA still find the person disabled if he/she stopped using drugs or alcohol.  If the person would still be disabled if he/she stopped using drugs or alcohol, technically, he/she should be awarded benefits. However, this determination is normally not as simple as it sounds.

For example, imagine a person who suffers from depression and an alcohol or drug problem. The person is using alcohol or drugs to help cope with the depression, because in his/her opinion, the depression medications prescribed by the doctor do not seem to work. This scenario raises a few issues. First, it is important to know whether or not the person has been advised to stop drinking or using drugs by the doctor. If the doctor has advised the person to stop and they continue to engage in the behavior, SSA will likely determine that the person is ignoring medical advice. In other words, they are non-compliant with the doctor’s orders. Other considerations are also whether the person is using v. abusing, is it prescription drugs or illegal drugs, etc.   

In our experience, most judges will refuse to grant Social Security Disability Benefits to anyone who is abusing alcohol and/or drugs, including prescription drugs.  If there are errors or misstatements in the medical record regarding alcohol and/or drugs, it is crucial that the patient talks with his/her doctor and get the record corrected as soon as possible so as not to negatively affect the Social Security case.  If the allegations are true, the Social Security claim will likely be denied if the person does not stop the drugs or alcohol right away.

In the VA context, substance abuse is viewed in somewhat of a different light. Unlike Social Security Disability, an issue with drugs and/or alcohol is not always fatal to the success of a VA disability claim. The VA will evaluate whether or not the veteran is disabled due to ‘willful misconduct’ which is the proximate or direct cause or the claimed disabilities. Willful misconduct is defined in the VA regulations as “an act involving conscious wrongdoing or known prohibited action.” If the VA determines that a disability is due to willful misconduct, the veteran is not eligible for compensation or pension for any disabilities related to the misconduct. However, the veteran is still eligible to claim compensation or pension for disabilities not related to the misconduct.

A common example that arises in VA disability law is veterans with PTSD and alcohol or drug issues. There is research that indicates that many veterans use drugs and/or alcohol as a coping mechanism for serious psychological trauma they have suffered as a result of military service. Assuming that the veteran can establish that he/she suffers from service connected PTSD, and if he/she can prove that the alcohol or drug abuse is caused by or secondary to the PTSD, the VA regulations do allow for secondary service connection of the substance abuse disorder. Service connection under this theory would also extend to any other conditions that develop as a result of the substance abuse, such as cirrhosis of the liver.  So in other words, secondary drug or alcohol abuse in this context would not be barred from service connection based on willful misconduct.

Of course not every veteran with substance abuse and mental health issues will be able to obtain service connection for the abuse; however, the point is that under VA disability law, a successful outcome is still possible. 

In sum, the bottom line is that drugs and alcohol do matter. If allegations of drugs and/or alcohol are false, it is crucial that the veteran or Social Security claimant speak to his/her doctor right away to get the record corrected as soon as possible. Lastly, it should be noted that if there is a “past history” of abuse, the fact that the abuse is in the past needs to be clarified in the record as well.

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