**§3.10 Dependency and indemnity compensation rate for a surviving
spouse.**

\(a\) *General determination of rate*. When VA grants a surviving spouse
entitlement to DIC, VA will determine the rate of the benefit it will
award. The rate of the benefit will be the total of the basic monthly
rate specified in paragraph (b) or (d) of this section and any
applicable increases specified in paragraph (c) or (e) of this section.

\(b\) *Basic monthly rate*. Except as provided in paragraph (d) of this
section, the basic monthly rate of DIC for a surviving spouse will be
the amount set forth in 38 U.S.C. 1311(a)(1).

\(c\) *Section 1311(a)(2) increase*. The basic monthly rate under
paragraph (b) of this section shall be increased by the amount specified
in 38 U.S.C. 1311(a)(2) if the veteran, at the time of death, was
receiving, or was entitled to receive, compensation for
service-connected disability that was rated by VA as totally disabling
for a continuous period of at least eight years immediately preceding
death. Determinations of entitlement to this increase shall be made in
accordance with paragraph (f) of this section.

\(d\) *Alternative basic monthly rate for death occurring prior to
January 1, 1993*. The basic monthly rate of DIC for a surviving spouse
when the death of the veteran occurred prior to January 1, 1993, will be
the amount specified in 38 U.S.C. 1311(a)(3) corresponding to the
veteran's pay grade in service, but only if such rate is greater than
the total of the basic monthly rate and the section 1311(a)(2) increase
(if applicable) the surviving spouse is entitled to receive under
paragraphs (b) and (c) of this section. The Secretary of the concerned
service department will certify the veteran's pay grade and the
certification will be binding on VA. DIC paid pursuant to this paragraph
may not be increased by the section 1311(a)(2) increase under paragraph
(c) of this section.

\(e\) *Additional increases*. One or more of the following increases may
be paid in addition to the basic monthly rate and the section 1311(a)(2)
increase.

\(1\) *Increase for children*. If the surviving spouse has one or more
children under the age of 18 of the deceased veteran (including a child
not in the surviving spouse's actual or constructive custody, or a child
who is in active military service), the monthly DIC rate will be
increased by the amount set forth in 38 U.S.C. 1311(b) for each child.

\(2\) *Increase for regular aid and attendance*. If the surviving spouse
is determined to be in need of regular aid and attendance under the
criteria in §3.352 or is a patient in a nursing home, the monthly DIC
rate will be increased by the amount set forth in 38 U.S.C. 1311(c).

\(3\) *Increase for housebound status*. If the surviving spouse does not
qualify for the regular aid and attendance allowance but is housebound
under the criteria in §3.351(f), the monthly DIC rate will be increased
by the amount set forth in 38 U.S.C. 1311(d).

\(4\) For a two-year period beginning on the date entitlement to
dependency and indemnity compensation commenced, the dependency and
indemnity compensation paid monthly to a surviving spouse with one or
more children below the age of 18 shall be increased by the amount set
forth in 38 U.S.C. 1311(e), regardless of the number of such children.
The dependency and indemnity compensation payable under this paragraph
is in addition to any other dependency and indemnity compensation
payable. The increase in dependency and indemnity compensation of a
surviving spouse under this paragraph 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. (Authority: 38 U.S.C.
1311(e))

\(f\) *Criteria governing section 1311(a)(2) increase*. In determining
whether a surviving spouse qualifies for the section 1311(a)(2) increase
under paragraph (c) of this section, the following standards shall
apply.

\(1\) *Marriage requirement*. The surviving spouse must have been
married to the veteran for the entire eight-year period referenced in
paragraph (c) of this section in order to qualify for the section
1311(a)(2) increase.

\(2\) *Determination of total disability*. As used in paragraph (c) of
this section, the phrase "rated by VA as totally disabling" includes
total disability ratings based on unemployability (§4.16 of this
chapter).

\(3\) *Definition of "entitled to receive".* As used in paragraph (c) of
this section, the phrase "entitled to receive" means that the veteran
filed a claim for disability compensation during his or her lifetime and
one of the following circumstances is satisfied:

\(i\) The veteran would have received total disability compensation for
the period specified in paragraph (c) of this section but for clear and
unmistakable error committed by VA in a decision on a claim filed during
the veteran's lifetime; or

\(ii\) Additional evidence submitted to VA before or after the veteran's
death, consisting solely of service department records that existed at
the time of a prior VA decision but were not previously considered by
VA, provides a basis for reopening a claim finally decided during the
veteran's lifetime and for awarding a total service-connected disability
rating retroactively in accordance with §§3.156(c) and 3.400(q)(2) of
this part for the period specified in paragraph (c) of this section; or

\(iii\) At the time of death, the veteran had a service-connected
disability that was continuously rated totally disabling by VA for the
period specified in paragraph (c) of this section, but was not receiving
compensation because:

> \(A\) VA was paying the compensation to the veteran's dependents;
>
> \(B\) VA was withholding the compensation under the authority of 38
> U.S.C. 5314 to offset an indebtedness of the veteran;
>
> \(C\) The veteran had not waived retired or retirement pay in order to
> receive compensation;
>
> \(D\) VA was withholding payments under the provisions of 10 U.S.C.
> 1174(h)(2);
>
> \(E\) VA was withholding payments because the veteran's whereabouts
> were unknown, but the veteran was otherwise entitled to continued
> payments based on a total service-connected disability rating; or
>
> \(F\) VA was withholding payments under 38 U.S.C. 5308 but determines
> that benefits were payable under 38 U.S.C. 5309. (Authority: 38 U.S.C.
> 501(a), 1311, 1314, and 1321).

\[70 FR 72220, Dec. 2, 2005, as amended at 71 FR 44918, Aug. 8, 2006\]

**Supplement *Highlights* references**: 69(1), 72(2).

Reserved