Question:
Hello Jim... I have a question regarding DIC. My wife is a veteran who is currently considered 100% P&T disabled (70% with TDIU) as of November of 2020. She had been receiving the same pay benefits as 100% since 2009 but not P&T. Unfortunately she was diagnosed with stage IV cancer (not service connected) a couple of months ago and will likely die from the disease. Because of her disability I am the primary caregiver to her and our children. And am even given a caregiver stipend from the VA. Since she will likely die from her cancer she will not fit the criteria of dying 10 years after her P&T rating. My question is... does being eligible for 100% pay benefits because of unemployability since 2009 until it was considered P&T in 2020 make me eligible for DIC? Thank you.
Jim's Reply:
I'm sorry for all that's happening to your veteran and your family.
Unfortunately the death benefits are somewhat rigid and if she passes from anything other than a service connected condition without 10 uninterrupted years of a total 100% rating, survivors aren't eligible for DIC. The temporary part of her 100% rating record doesn't start this clock.
Although you don't say what her temporary rating was, you will want to file a formal appeal that says she should have had a permanent rating long before November 2020.
This will be an appeal of her recent rating seeking an earlier effective date.
As this will be an appeal, you're eligible for free legal help from an accredited veterans law attorney.
You'll also want to try and service connect her current cancer to whatever she is rated for...a secondary service connected condition.
I'll also suggest you go here https://www.index.va.gov/search/va/bva.jsp and use the search engine you'll find there and look for <effective date> or <early earlier effective date> or similar search terms and see what you can find that may be similar to what you're facing. The BVA search function is a great tool although it demands some focused time to produce favorable results.
I can't promise anyone will be able to help...this is always a bad spot to be in and unfortunately it isn't uncommon. If you file the appeal with the help of a lawyer today, even if she were to pass before it were adjudicated, the appeal would continue through the adjudication process. Good luck.