USC Subchapter II

USC Subchapter II
in effect

38 U.S.C. § 1310 Deaths entitling survivors to dependency and indemnity compensation

(a) When any veteran dies after December 31, 1956, from a service-connected or compensable disability, the Secretary shall pay dependency and indemnity compensation to such veteran’s surviving spouse, children, and parents. The standards and criteria for determining whether or not a disability is service-connected shall be those applicable under chapter 11 of this title. (b) Dependency and indemnity compensation shall not be paid to the surviving spouse, children, or parents of any veteran dying after December 31, 1956, unless such veteran (1) was discharged or released under conditions other than dishonorable from the period of active military, naval, air, or space service in which the disability causing such veteran’s death was incurred or aggravated, or (2) died while in the active military, naval, air, or space service. (c) A person who receives a payment under the provisions of the Radiation Exposure Compensation Act of 1990 (42 U.S.C. 2210 note) shall not be deprived, by reason of the receipt of that payment, of receipt of dependency and indemnity compensation to which that person is otherwise entitled, but there shall be deducted from payment of such dependency and indemnity compensation the amount of the payment under that Act.

38 U.S.C. § 1311 Dependency and indemnity compensation to a surviving spouse

(a)(1) Dependency and indemnity compensation shall be paid to a surviving spouse at the monthly rate of $1,154. (2) The rate under paragraph (1) shall be increased by $246 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 rated totally disabling for a continuous period of at least eight years immediately preceding death. In determining the period of a veteran’s disability for purposes of the preceding sentence, only periods in which the veteran was married to the surviving spouse shall be considered. (3) In the case of dependency and indemnity compensation paid to a surviving spouse that is predicated on the death of a veteran before January 1, 1993, the monthly rate of such compensation shall be the amount based on the pay grade of such veteran, as set forth in the following table, if the amount is greater than the total amount determined with respect to that veteran under paragraphs (1) and (2): Pay gradeMonthly ratePay gradeMonthly rate 1 If the veteran served as sergeant major of the Army, senior enlisted advisor of the Navy, chief master sergeant of the Air Force, sergeant major of the Marine Corps, or master chief petty officer of the Coast Guard, at the applicable time designated by section 1302 of this title, the surviving spouse’s rate shall be $1,419. 2 If the veteran served as Chairman or Vice-Chairman of the Joint Chiefs of Staff, Chief of Staff of the Army, Chief of Naval Operations, Chief of Staff of the Air Force, Commandant of the Marine Corps, or Commandant of the Coast Guard, at the applicable time designated by section 1302 of this title, the surviving spouse’s rate shall be $2,643. E–1$1,154W–4$1,380 E–2$1,154O–1$1,219 E–3$1,154O–2$1,260 E–4$1,154O–3$1,347 E–5$1,154O–4$1,427 E–6$1,154O–5$1,571 E–7$1,194O–6$1,771 E–8$1,260O–7$1,912 E–9$1,3141O–8$2,100 W–1$1,219O–9$2,246 W–2$1,267O–10$2,463 2 W–3$1,305 ............ (b) If there is a surviving spouse with one or more children below the age of eighteen of a deceased veteran, the dependency and indemnity compensation paid monthly to the surviving spouse shall be increased by $286 for each such child. (c) The monthly rate of dependency and indemnity compensation payable to a surviving spouse shall be increased by $286 if the spouse is (1) a patient in a nursing home or (2) blind, or so nearly blind or significantly disabled as to need or require the regular aid and attendance of another person. (d) The monthly rate of dependency and indemnity compensation payable to a surviving spouse shall be increased by $135 if the surviving spouse is, by reason of disability, permanently housebound but does not qualify for the aid and attendance allowance under subsection (c) of this section. For the purposes of this subsection, the requirement of “permanently housebound” will be considered to have been met when the surviving spouse is substantially confined to such surviving spouse’s home (ward or clinical areas, if institutionalized) or immediate premises by reason of a disability or disabilities which it is reasonably certain will remain throughout such surviving spouse’s lifetime. (e) In the case of an individual who is eligible for dependency and indemnity compensation under this section by reason of section 103(d)(2)(B) of this title who is also eligible for benefits under another provision of law by reason of such individual’s status as the surviving spouse of a veteran, then, notwithstanding any other provision of law (other than section 5304(b)(3) of this title), no reduction in benefits under such other provision of law shall be made by reason of such individual’s eligibility for benefits under this section. (f)(1) Subject to paragraphs (2) and (3), if there is a surviving spouse with one or more children below the age of 18, the dependency and indemnity compensation paid monthly to the surviving spouse shall be increased by $250 (as increased from time to time under paragraph (4)), regardless of the number of such children. (2) Dependency and indemnity compensation shall be increased under this subsection only for months occurring during the two-year period beginning on the date on which entitlement to dependency and indemnity compensation commenced. (3) The increase in dependency and indemnity compensation of a surviving spouse under this subsection shall cease beginning with the first month commencing after the month in which all children of the surviving spouse have attained the age of 18. (4) Whenever there is an increase in benefit amounts payable under title II of the Social Security Act (42 U.S.C. 401 et seq.) as a result of a determination made under section 215(i) of such Act (42 U.S.C. 415(i)), the Secretary shall, effective on the date of such increase in benefit amounts, increase the amount payable under paragraph (1), as such amount was in effect immediately prior to the date of such increase in benefit amounts, by the same percentage as the percentage by which such benefit amounts are increased. Any increase in a dollar amount under this paragraph shall be rounded down to the next lower whole dollar amount. (5) Dependency and indemnity compensation under this subsection is in addition to any other dependency and indemnity compensation payable under this chapter.

38 U.S.C. § 1312 Benefits in certain cases of in-service or service-connected deaths

(a) In the case of any veteran—(1) who dies after December 31, 1956, and is not a fully and currently insured individual (as defined in section 214 of the Social Security Act (42 U.S.C. 414)) at the time of such veteran’s death; and (2) whose death occurs—(A) while on active duty, active duty for training, or inactive duty training; or (B) as the result of a service-connected disability incurred after September 15, 1940; and (3) who leaves one or more survivors who are not entitled for any month to monthly benefits under section 202 of the Social Security Act (42 U.S.C. 402) on the basis of such veteran’s wages and self-employment income but who would, upon application therefor, be entitled to such benefits if such veteran had been fully and currently insured at the time of such veteran’s death; the Secretary shall pay for such month benefits under this section to each such survivor in an amount equal to the amount of the benefits which would have been paid for such month to such survivor under title II of the Social Security Act (42 U.S.C. 401 et seq.), if such veteran had been both fully and currently insured at the time of such veteran’s death and if such survivor had filed application therefor on the same date on which application for benefits under this section is filed with the Secretary. (b) In any case where the amount of dependency and indemnity compensation payable under this chapter to a surviving spouse who has children is less than the amount of pension which would be payable to (1) such surviving spouse, or (2) such children if the surviving spouse were not entitled, under chapter 15 of this title had the death occurred under circumstances authorizing payment of death pension, the Secretary shall pay dependency and indemnity compensation to such surviving spouse in an amount equal to such amount of pension.

38 U.S.C. § 1313 Dependency and indemnity compensation to children

(a) Whenever there is no surviving spouse of a deceased veteran entitled to dependency and indemnity compensation, dependency and indemnity compensation shall be paid in equal shares to the children of the deceased veteran at the following monthly rates:(1) one child, $488; (2) two children, $701; (3) three children, $915; and (4) more than three children, $915, plus $174 for each child in excess of three. (b) If dependency and indemnity compensation has been awarded under this section to a veteran’s child or children and the entitlement to dependency and indemnity compensation under this section of an additional child of that veteran who is over the age of eighteen years and who had previously been entitled to depend­ency and indemnity compensation under this section before becoming eighteen years of age is later reestablished effective retroactively upon determination that such child is pursuing a course of instruction at an approved educational institution, the amount payable retroactively to the additional child is the amount equal to the difference between the total of the increased award payable under this section to the children of the deceased veteran for the retroactive period and the prior total award for such purpose for that period.

38 U.S.C. § 1314 Supplemental dependency and indemnity compensation to children

(a) In the case of a child entitled to dependency and indemnity compensation who has attained the age of eighteen and who, while under such age, became permanently incapable of self-support, the dependency and indemnity compensation paid monthly to such child shall be increased by $286. (b) If dependency and indemnity compensation is payable monthly to a person as a surviving spouse and there is a child (of such person’s deceased spouse) who has attained the age of eighteen and who, while under such age, became permanently incapable of self-support, dependency and indemnity compensation shall be paid monthly to each such child, concurrently with the payment of dependency and indemnity compensation to the surviving spouse, in the amount of $488. (c) If dependency and indemnity compensation is payable monthly to a person as a surviving spouse and there is a child (of such person’s deceased spouse), who has attained the age of eighteen and who, while under the age of twenty-three, is pursuing a course of instruction at an educational institution approved under section 104 of this title, dependency and indemnity compensation shall be paid monthly to each such child, concurrently with the payment of dependency and indemnity compensation to the surviving spouse, in the amount of $243.

38 U.S.C. § 1315 Dependency and indemnity compensation to parents

(a)(1) Except as provided in paragraph (2), dependency and indemnity compensation shall be paid monthly to parents of a deceased veteran in the amounts prescribed by this section. (2) Under regulations prescribed by the Secretary, benefits under this section may be paid less frequently than monthly if the amount of the annual benefit is less than 4 percent of the maximum annual rate payable under this section. (b)(1) Except as provided in paragraph (4) of this subsection, if there is only one parent, the monthly rate of dependency and indemnity compensation paid to such parent shall be $569, as increased from time to time under section 5312(b)(1) of this title and reduced by an amount, based upon the amount of such parent’s annual income, determined in accordance with regulations which the Secretary shall prescribe under section 5312(b)(2) of this title. (2) In no case may the amount of dependency and indemnity compensation payable to any parent under this subsection be less than $5 monthly. (3) In no case may dependency and indemnity compensation be paid under paragraph (1) of this subsection to any parent if the annual income of such parent exceeds $13,456, as increased from time to time under section 5312 of this title. (4) If there is only one parent and such parent has remarried and is living with such parent’s spouse, dependency and indemnity compensation shall be paid to such parent under either paragraph (1) of this subsection or under subsection (d) of this section, whichever will result in the greater amount of such compensation being paid to such parent. In such a case of remarriage the total combined annual income of the parent and such parent’s spouse shall be counted in determining the monthly rate of dependency and indemnity compensation under the appropriate formula. (c)(1) Except as provided in subsection (d) of this section, if there are two parents, but they are not living together, the monthly rate of dependency and indemnity compensation paid to each such parent shall be $412, as increased from time to time under section 5312(b)(1) of this title and reduced by an amount, based upon the amount of such parent’s annual income, determined in accordance with regulations which the Secretary shall prescribe under section 5312(b)(2) of this title. (2) In no case may the amount of dependency and indemnity compensation payable to any parent under this subsection be less than $5 monthly. (3) In no case may dependency and indemnity compensation be paid under paragraph (1) of this subsection to any parent if the annual income of such parent exceeds $13,456, as increased from time to time under section 5312 of this title. (d)(1) If there are two parents who are living together, or if a parent has remarried and is living with such parent’s spouse, the monthly rate of dependency and indemnity compensation paid to such parent shall be $387, as increased from time to time under section 5312(b)(1) of this title and reduced by an amount, based upon the amount of the combined annual income of the parents or the parent and the parent’s spouse, determined in accordance with regulations which the Secretary shall prescribe under section 5312(b)(2) of this title. (2) In no case may the amount of dependency and indemnity compensation payable to any parent under this subsection be less than $5 monthly. (3) In no case may dependency and indemnity compensation be paid under this subsection to a parent if the total combined annual income of the parent and such parent’s spouse exceeds $18,087, as increased from time to time under section 5312 of this title. (e) The Secretary may require as a condition of granting or continuing dependency and indemnity compensation to a parent that such parent, other than one who has attained seventy-two years of age and has been paid dependency and indemnity compensation during two consecutive calendar years, file for a calendar year with the Secretary (on the form prescribed by the Secretary) a report showing the total income which such parent expects to receive in that year and the total income which such parent received in the preceding year. The parent or parents shall notify the Secretary whenever there is a material change in annual income. (f)(1) In determining income under this section, all payments of any kind or from any source shall be included, except—(A) payments of the six-months’ death gratuity; (B) donations from public or private relief or welfare organizations; (C) payments under this chapter (except section 1312(a)) and chapters 11 and 15 of this title and under the first sentence of section 9(b) of the Veterans’ Pension Act of 1959; (D) lump-sum death payments under title II of the Social Security Act (42 U.S.C. 401 et seq.); (E) payments of bonus or similar cash gratuity by any State based upon service in the Armed Forces; (F) payments under policies of servicemembers’ group life insurance, United States Government life insurance or national service life insurance, and payments of servicemen’s indemnity; (G) 10 percent of the amount of payments to an individual under public or private retirement, annuity, endowment, or similar plans or programs; (H) amounts equal to amounts paid by a parent of a deceased veteran for—(i) a deceased spouse’s just debts, (ii) the expenses of the spouse’s last illness to the extent such expenses are not reimbursed under chapter 51 of this title, and (iii) the expenses of the spouse’s burial to the extent that such expenses are not reimbursed under chapter 23 or chapter 51 of this title; (I) reimbursements of any kind for any casualty loss (as defined in regulations which the Secretary shall prescribe), but the amount excluded under this clause may not exceed the greater of the fair market value or the reasonable replacement value of the property involved at the time immediately preceding the loss; (J) amounts equal to amounts paid by a parent of a deceased veteran for—(i) the expenses of the veteran’s last illness, and (ii) the expenses of such veteran’s burial to the extent that such expenses are not reimbursed under chapter 23 of this title; (K) profit realized from the disposition of real or personal property other than in the course of a business; (L) payments received for discharge of jury duty or obligatory civic duties; (M) payments of annuities elected under subchapter I of chapter 73 of title 10. (2) Where a fraction of a dollar is involved, annual income shall be fixed at the next lower dollar. (3) The Secretary may provide by regulation for the exclusion from income under this section of amounts paid by a parent for unusual medical expenses. (g) The monthly rate of dependency and indemnity compensation payable to a parent shall be increased by $308, as increased from time to time under section 5312 of this title, if such parent is (1) a patient in a nursing home or (2) blind, or so nearly blind or significantly disabled as to need or require the regular aid and attendance of another person.

38 U.S.C. § 1316 Dependency and indemnity compensation in cases of prior deaths

(a)(1) Any person who is eligible as a surviving spouse or child for death compensation by reason of a death occurring before January 1, 1957, may receive dependency and indemnity compensation upon application therefor. (2) Any person who is eligible as a parent, or, but for such person’s annual income, would be eligible as a parent, for death compensation by reason of a death occurring before January 1, 1957, may receive dependency and indemnity compensation upon application therefor; however, the annual income limitations established by section 1315 of this title shall apply to each such parent. (b)(1) Whenever the surviving spouse of a veteran has been granted dependency and indemnity compensation by reason of this section, payments to such surviving spouse and to the children of the veteran shall thereafter be made under this chapter, and shall not thereafter be made to them by reason of the death of the veteran under (A) other provisions of law administered by the Secretary providing for the payment of compensation or pension, or (B) subchapter I of chapter 81 of title 5. (2) Whenever the child or parent of any veteran is granted dependency and indemnity compensation, payments shall not thereafter be made to such child or parent by reason of the death of the veteran under (A) other provisions of law administered by the Secretary providing for the payment of compensation or pension, or (B) subchapter I of chapter 81 of title 5. (c) If children of a deceased individual are receiving death compensation, and all such children have not applied for dependency and indemnity compensation, (1) dependency and indemnity compensation paid to each child who has applied therefor shall not exceed the amounts which would be paid if the application had been made by, or on behalf of, all such children, and (2) benefits paid under other provisions of law administered by the Secretary providing for the payment of compensation or pension, or under subchapter I of chapter 81 of title 5, to each child who has not so applied therefor shall not exceed the amounts which would be paid to such child if no such application had been made. (d) If there are two parents of a deceased individual eligible for benefits by reason of subsection (a), and an application for dependency and indemnity compensation is not made by both parents, (1) dependency and indemnity compensation paid to the parent who applies therefor shall not exceed the amounts which would be paid to such parent if both parents had so applied, and (2) benefits paid under other provisions of law administered by the Secretary providing for the payment of compensation, or under subchapter I of chapter 81 of title 5, to the parent who has not so applied therefor shall not exceed the amounts which would be paid to such parent if no such application had been made. (e)(1) Except as provided in paragraphs (3) and (4), no person who, on January 1, 1957, was a principal or contingent beneficiary of any payments under the Servicemen’s Indemnity Act of 1951 may receive any such payments based upon the death giving rise to such payments after such person has been granted dependency and indemnity compensation based upon that death. No principal or contingent beneficiary who has assigned such beneficiary’s interest in payments under the Servicemen’s Indemnity Act of 1951 after June 28, 1956, may receive any payments under this chapter based upon the death giving rise to such payments until the portion of the indemnity so assigned is no longer payable to any person. (2) Where a beneficiary is barred from the receipt of payments under the Servicemen’s Indemnity Act of 1951 by virtue of the first sentence of paragraph (1), no payments of the portion of indemnity in which such beneficiary had an interest shall be made to any other beneficiary. (3) In the case of a child who has applied for dependency and indemnity compensation pursuant to this section or prior corresponding provisions of law, and who is or becomes a beneficiary under the Servicemen’s Indemnity Act of 1951 by reason of the death giving rise to such child’s eligibility for dependency and indemnity compensation, the Secretary shall determine and pay to such child for each month, or part thereof, payments under this chapter or under such Act, whichever payment the Secretary determines to be the greater amount. (4) Notwithstanding paragraph (2), where a child receives dependency and indemnity compensation under this chapter, and thereafter dies, the portion of servicemen’s indemnity in which such child had an interest may be paid (subject to paragraph (3)) to another child of the person by reason of whose death such servicemen’s indemnity was payable.

38 U.S.C. § 1317 Restriction on payments under this chapter

(a) Except as provided in subsection (b), no person eligible for dependency and indemnity compensation by reason of any death occurring after December 31, 1956, shall be eligible by reason of such death for any payments under (1) provisions of law administered by the Secretary providing for the payment of death compensation or death pension, or (2) subchapter I of chapter 81 of title 5. (b) A surviving spouse who is eligible for dependency and indemnity compensation may elect to receive death pension instead of such compensation.

38 U.S.C. § 1318 Benefits for survivors of certain veterans rated totally disabled at time of death

(a) The Secretary shall pay benefits under this chapter to the surviving spouse and to the children of a deceased veteran described in subsection (b) of this section in the same manner as if the veteran’s death were service connected. (b) A deceased veteran referred to in subsection (a) of this section is a veteran who dies, not as the result of the veteran’s own willful misconduct, and who was in receipt of or entitled to receive (or but for the receipt of retired or retirement pay was entitled to receive) compensation at the time of death for a service-connected disability rated totally disabling if—(1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran’s discharge or other release from active duty; or (3) the veteran was a former prisoner of war and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. (c) Benefits may not be paid under this chapter by reason of this section to a surviving spouse of a veteran unless—(1) the surviving spouse was married to the veteran for one year or more immediately preceding the veteran’s death; or (2) a child was born of the marriage or was born to them before the marriage. (d) If a surviving spouse or a child receives any money or property of value pursuant to an award in a judicial proceeding based upon, or a settlement or compromise of, any cause of action for damages for the death of a veteran described in subsection (a) of this section, benefits under this chapter payable to such surviving spouse or child by virtue of this section shall not be paid for any month following a month in which any such money or property is received until such time as the total amount of such benefits that would otherwise have been payable equals the total of the amount of the money received and the fair market value of the property received. (e) For purposes of sections 1448(d) and 1450(c) of title 10, eligibility for benefits under this chapter by virtue of this section shall be deemed eligibility for dependency and indemnity compensation under section 1311(a) of this title.

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