§1316 — Title 38 Veterans' Benefits | U.S. Code

Summary

People who were eligible as a surviving spouse or child for death payments for a death before January 1, 1957 can apply to get dependency and indemnity compensation (DIC). Parents who would be eligible except for their yearly income can also apply, but the income limits in section 1315 still apply to each parent. Once a surviving spouse gets DIC, payments to that spouse and to the veteran’s children for that death will be paid under this law and not under other VA compensation or pension rules or the federal survivor rules in Title 5, chapter 81, subchapter I. The same rule applies when a child or a parent is granted DIC. If some children or only one of two eligible parents apply for DIC while others do not, the amounts paid are adjusted so no applicant gets more than they would have if all had applied, and nonapplicants do not get more under the other laws than they would have if no DIC application had been made. People who on January 1, 1957 were beneficiaries under the Servicemen’s Indemnity Act of 1951 cannot get both those indemnity payments and DIC for the same death after they get DIC. Anyone who assigned their Servicemen’s Indemnity after June 28, 1956 cannot get DIC for that death until the assigned portion is no longer payable. If a child qualifies for both DIC and Servicemen’s Indemnity, the Secretary will pay whichever is larger each month. If a child who received DIC then dies, that child’s share of the Servicemen’s Indemnity may go to another child.

Title 38, §1316

Veterans' Benefits — Source: USLM XML via OLRC

(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.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Servicemen’s Indemnity Act of 1951, referred to in subsec. (e), is act Apr. 25, 1951, ch. 39, pt. I, 65 Stat. 33, which was classified generally to subchapter II (§ 851 et seq.) of chapter 13 of former Title 38, Pensions, Bonuses, and Veterans’ Relief, and was repealed by act Aug. 1, 1956, ch. 837, title V, § 502(9), 70 Stat. 886.

Amendments

1991—Pub. L. 102–83, § 5(a), renumbered section 416 of this title as this section. Subsec. (a)(2). Pub. L. 102–83, § 5(c)(1), substituted “1315” for “415”. Subsecs. (b) to (d). Pub. L. 102–83, § 4(a)(1), substituted “administered by the Secretary” for “administered by the Veterans’ Administration” wherever appearing. Subsec. (e)(3). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” in two places. 1982—Subsecs. (b)(1)(B), (2)(B), (c)(2), (d)(2). Pub. L. 97–295 substituted “subchapter I of chapter 81 of title 5” for “the Federal Employees’ Compensation Act” wherever appearing. 1976—Subsec. (a). Pub. L. 94–433, § 405(11), substituted “surviving spouse” for “widow” in par. (1) and “such person’s” for “his” in par. (2). Subsec. (b)(1). Pub. L. 94–433, § 405(12), substituted “surviving spouse” and “such surviving spouse” for “widow” and “her”, respectively. Subsec. (c). Pub. L. 94–433, § 405(13), substituted “paid to such child” for “paid to him”. Subsec. (d). Pub. L. 94–433, § 405(14), substituted “such parent” for “him” in cls. (1) and (2). Subsec. (e). Pub. L. 94–433, § 405(15), (16), substituted “such person” and “such beneficiary’s” for “he” and “his”, respectively, in par. (1) and “such child’s” and “the Administrator” for “his” and “he”, respectively, in par. (3).

Statutory Notes and Related Subsidiaries

Effective Date

of 1976 AmendmentAmendment by Pub. L. 94–433 effective Oct. 1, 1976, see section 406 of Pub. L. 94–433, set out as a note under section 1101 of this title.

§1316 Dependency and Indemnity Compensation in Cases of Prior Deaths