discharged or released under conditions other than dishonorable from active duty. (Amended P.L. 91–96, § 1; P.L. 94-433, § 405 (1).)

(c) The pay grade of any veteran described in section 106 (b) of this title shall be that to which such veteran would have been assigned upon final acceptance or entry upon active duty. (Amended P.L. 91-96, § 1; P.L. 94-433, § 405 (2).)

(d) If a veteran has satisfactorily served on active duty for a period of six months or more in a pay grade higher than that specified in subsection (a) or (b) and any subsequent discharge or release from active duty was under conditions other than dishonorable, the higher pay grade shall be used if it will result in greater monthly payments to such veteran's surviving spouse under this chapter. The determination as to whether an individual has served satisfactorily for the required period in a higher pay grade shall be made by the Secretary of the Department in which such higher pay grade was held. (Added P.L. 86-492; amended P.L. 89-622, § 1; P.L. 91-96, § 1; P.L. 94-433, § 405 (2).)

(e) The pay grade of any person not otherwise described in this section, but who had a compensable status on the date of such person's death under laws administered by the Veterans' Administration, shall be determined by the head of the department under which such person performed the services by which such person obtained such status (taking into consideration such person's duties and responsibilities) and certified to the Administrator. For the purposes of this chapter, such person shall be deemed to have been on active duty while performing such services. (Added P.L. 91–96, § 1; amended P.L. 94– 433, § 405 (3).)

§ 403. Coverage of members of Reserve Officers' Training Corps For the purposes of this chapter and section 722 of this title, annual training duty to which ordered for a period of fourteen days or more by a member of a Reserve Officers' Training Corps, and authorized travel to or from such a duty, shall be deemed to be active military, naval, or air service. (Amended P.L. 91–96, § 2.)

§ 404. Special provisions relating to surviving spouses

No dependency and indemnity compensation shall be paid to the surviving spouse of a veteran dying after December 31, 1956, unless such surviving spouse was married to such veteran

(1) before the expiration of fifteen years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated;

or

(2) for one year or more; or

(3) for any period of time if a child was born of the marriage, or was born to them before the marriage. (Amended P.L. 90-77, § 101 (a); P.L. 94-433, § 405 (4).)

37-945 O-79-6

Subchapter II-Dependency and Indemnity Compensation

§ 410. 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 Administrator 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. (Amended P.L. 94–433, § 405 (7).)

(b) (1) Notwithstanding the provisions of subsection (a) of this section, when any veteran dies, not as the result of the veteran's own willful misconduct, if the veteran was in receipt of (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 that either (A) was continuously rated totally disabling for a period of ten or more years immediately preceding death, or (B) if so rated for a lesser period, was so rated continuously for a period of not less than five years from the date of such veteran's discharge or other release from active duty, the Administrator shall pay benefits under this chapter to the veteran's surviving spouse, if such surviving spouse was married to such veteran for not less than two years immediately preceding such veteran's death, and to such veteran's children, in the same manner as if the veteran's death were service connected.

(2) 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 paragraph (1) of this subsection, benefits under this chapter payable to such surviving spouse or child by virtue of this subsection 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.

(3) For purposes of sections 1448 (d) and 1450 (c) of title 10, eligibility for benefits under this chapter by virtue of this subsection shall be deemed eligibility for dependency and indemnity compensation under section 411 (a) of this title. (Added P.L. 95-479, § 204.)

(c) 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, or air service in which the disability causing such veteran's death was incurred or aggravated, or (2) died while in the active military, naval, or air service. (Amended P.L. 94-433, § 405 (7).)

§ 411. Dependency and indemnity compensation to a surviving

spouse

(a) Dependency and indemnity compensation shall be paid to a surviving spouse, based on the pay grade of the persons upon whose

death entitlement is predicated, at monthly rates set forth in the

following table:

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 402 of this title, the surviving spouse's rate shall be $437.

If the veteran served as Chairman of the Joint Chiefs of Staff, Chief of Staff of the Army, Chief of Naval Operations, Chief of Staff of the Air Force or Commandant of the Marine Corps, at the applicable time designated by section 402 of this title, the surviving spouse's rate shall be $814.

(Amended P.L. 88-134, § 1; P.L. 91–96, § 3; P.L. 92–197, § 1; P.L. 92-455, § 4; P.L. 93-295, § 201; P.L. 94-71, § 201; P.L. 94-433, § 201; P.L. 95-117, § 201; P.L. 95-479, § 201 (a).)

(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 $35 for each such child. (Amended P.L. 88-21, § 1; P.L. 91-96, § 3; P.L. 92–197, §1; P.L. 93–295, § 201; P.L. 94-71, § 201; P.L. 94-433, § 201; P.L. 95-117, § 201; P.L. 95-479, § 201 (b).)

(c) The monthly rate of dependency and indemnity compensation payable to a surviving spouse shall be increased by $89 if the spouse is (1) a patient in a nursing home or (2) helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another person. (Amended P.L. 91-96, § 3; P.L. 91-588, § 3(a); P.L. 93-295, § 201; P.L. 94-71, § 201; P.L. 94-433, § 201; P.L. 95–117, §201; P.L. 95-479, § 201 (c).)

(d) The monthly rate of dependency and indemnity compensation payable to a surviving spouse shall be increased by $45 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. (Added P.L. 95-479, § 201 (d).)

§ 412. 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 414 of title 42) 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 402 of title 42 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; and

the Administrator shall pay for such monthly 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 subchapter II of chapter 7 of title 42, 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 there for on the same date on which application for benefits under this section is filed with the Administrator. (Amended P.L. 94-433, § 405 (9).)

(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 Administrator shall pay dependency and indemnity compensation to such surviving spouse in an amount equal to such amount of pension. (Added P.L. 87-268, § 1(a); amended P.L. 89-466; P.L. 94 433, $ 405 (9).)

§ 413. Dependency and indemnity compensation to children

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, $150;

(2) two children, $216;

(3) three children, $278; and

(4) more than three children, $278, plus $56 for each child in excess of three. (Amended P.L. 88-21, § 2; P.L. 89-730, § 4: P.L. 91-262, § 2; P.L. 92–197, § 2; P.L. 93–295, § 202; P.L. 94-71, § 202; P.L. 94-433, § 202; P.L. 95-117, § 202; P.L. 95-479, § 202.)

§ 414. 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 raid monthly to such child shall be increased by $89. (Amended P.L. 88-21, § 3(1); P.L. 89-730, § 5(1); P.L. 91-262, § 3(a); P.L. 92–197. § 3(a); P.L. 93–295, § 203 (a); P.L. 94-71, § 203 (a); P.L. 94-433, §§ 203 (1), 405 (10); P.L. 95– 117, § 203 (1); P.L. 95-479, § 203 (1).)

(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 $150. (Amended P.L. 88-21, § 3(2); P.L. 89-730, § 5(2); P.L. 91-262, $3(b); P.L. 92-197, § 3(b); P.L. 93-295, § 203 (b); P.L. 94-71, § 203 (b); P.L. 94-433, §§ 203 (2), 405 (10); P.L. 95-117, § 203 (2); P.L. 95-479, § 203 (2).)

(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 $76. (Amended P.L. 88–21, § 3 (3); P.L. 89–311, § 2 (c) (2); P.L. 89-730, § 5(3); P.L. 91-262, $3(c); P.L. 92-197, § 3(c); P.L. 93295, § 203 (c); P.L. 94–71, § 203 (c); P.L. 94-433, §§ 203 (3), 405 (10) ; P.L. 95-117, § 203 (3) ; P.L. 95–479, § 203 (3).)

§ 415. Dependency and indemnity compensation to parents

(a) Dependency and indemnity compensation shall be paid monthly to parents of a deceased veteran in the amounts prescribed by 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 $163, as increased from time to time under section 3112(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 Administrator shall prescribe under section 3112(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 $4,038, as increased from time to time under section 3112 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. (Amended P.L. 88-21, § 4(a); P.L. 89-730, 1(a); P.L. 90-275, § 2(a); P.L. 91-588, § 2(a); P.L. 92-197, § 4(a);

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