By Valerie L. Peterson, J.D.
CEO, ElderCounsel, LLC®
Veterans Compensation – Overview. Compensation is the benefit paid to veterans who have disabilities incurred or aggravated during active duty. The disability does not need to be related to combat or a job held during active duty. Rather, it had to have occurred during with service and in the line of duty. Compensation is not based on income or assets. It is awarded based solely on a disability determination.
Compensation is similar to workers compensation in the private sector. But unlike disability determinations for social security benefits, where total disability is required before any award is given, disability ratings for VA benefits are made in increments of 10 percent. The monthly award is directly related to the percentage of disability – the higher the disability, the higher the monthly award.
Veterans Pension – Overview. Veterans who served during a period of war (as defined by Congress) and who are permanently and totally disabled from a cause not solely related to their military service may be eligible for pension benefits. Unlike compensation, pension benefits are awarded based both on disability and income, as well as the net worth of the veteran. In many cases, pension pays less for a total disability than the compensation program pays. However, there are additional allowances to pension, known as Housebound and Aid and Attendance, that can increase the monthly pension amount paid and will be discussed more thoroughly below.
Survivor’s Rights to Compensation or Pension – Quick Overview. Surviving spouses or dependent children of military personnel who die on active duty and surviving spouses or dependent children of veterans who die as a result of a service-connected disability are eligible for dependency and indemnity compensation (DIC). Low-income surviving family members may also be eligible for what is referred to as Death Pension (or Improved Death Pension), as well as the additional allowances for Housebound and Aid and Attendance.
Eligibility Overview. While each benefit administered by the Department of Veterans Affairs (VA) has its own unique set of eligibility requirements there are some basic principles of eligibility common to many VA benefits programs. These fundamental principles center around what it means to be a veteran. This includes whether a person had military service, whether that military service was active, and under what circumstances a person was discharged. The length of active military service (and timing of that service) can also affect VA pension, VA health care and some education benefits.
There are two steps required for any VA benefit. First, the person applying for VA benefits must establish basic eligibility for a given benefit. Basic eligibility normally relates to the type of service, length of time and time period. Second, the person applying for benefits must establish entitlement to the particular benefit being sought. The term entitlement relates to the qualification of the person applying, either a veteran, dependent of a veteran, or survivor of a veteran, for a particular benefit, assuming that the basic eligibility of the veteran has been established. It is also important to note that there are some veterans who would be entitled to benefits (under step two), but who do not meet the basic eligibility requirements for VA benefits (they fail under step one).
Active Duty. In order to qualify for most VA benefits, the person applying for benefits must be a veteran or the dependent or survivor of a veteran. The VA defines a veteran as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” The VA’s definition of a veteran requires not only that a person served in the military, but also that that service was active. In some cases, this may encompass members of the Armed Forces Reserves or National Guard who serve on active duty. For example, a Reservist who is activated to serve in Afghanistan for 12 months is considered to have served on active duty during that time. A National Guard member would be eligible for VA benefits if for federal purposes.
Type of Discharge. The type of discharge will also determine whether the VA will consider a person a veteran. A person desiring veteran status must have been discharged or released under conditions other than dishonorable. The language that the VA uses to describe the character of a veterans service does not correspond precisely with the language used by the military. The military has its own language that it uses to describe the circumstances under which a person was discharged.
The military issues essentially five types of discharges:
- Honorable discharge (HD);
- Discharge under honorable conditions (UHC), or general discharge (GD);
- Discharge under other than honorable conditions (OTH), or undesirable discharge (UD);
- Bad conduct discharge (BCD) (which can be issued by sentence of either a special court-martial or a general court-martial); and
- Dishonorable discharge (DD) or a dismissal, the latter in the case of an officer (both are issued only by a general court-martial).
Individuals with dishonorable discharges generally cannot get benefits. Individuals with discharges under other than honorable conditions, undesirable discharges and bad conduct discharges may or may not be eligible for VA benefits. Individuals with honorable discharges, discharges under honorable conditions, and general discharges usually do qualify for benefits.
For those discharges that are questionable, the VA will first adjudicate the issue of the character of service to decide whether the veteran was separated from service under dishonorable conditions or other than dishonorable conditions. In a character of service determination, the VA reviews the entire period of service to evaluate the quality of service and judge if it was good enough to merit receipt of veterans benefits. Initial decisions are rendered at the VA regional office having jurisdiction over the claim. Adverse decisions can be appealed to the Board of Veterans Appeals and subsequently to the United States Court of Appeals for Veterans Claims.
There may be situations when a discharge may be changed by administrative action. The statutory bars to benefits described above may be overcome if the discharge is upgraded by the service departments Board for Correction of Military Records (BCMR). All discharges upgraded by a service department BCMR to at least a general discharge (GD) are final and conclusive on the Department of Veterans Affairs and may be enough to allow a veteran to meet the discharge requirements that apply to eligibility for veterans benefits.
In 1982, the Department of Defense (DoD) created three new categories of administrative discharges that do not characterize the individual’s service: entry level separation, void enlistment or induction, and dropped from the rolls. Entry-level separation is considered a discharge under conditions other than dishonorable. In cases of void enlistment or induction and dropped from the rolls, the VA will decide if the claimant is eligible for VA benefits on a case-by-case basis.
Time Period of Service for VA Pension. Only veterans with service during a period of war are eligible for non-service-connected disability pension benefits. Service in a combat zone is not required. The veteran only had to serve during a time designated as a period of war as designated by Congress. A veteran will have met the service requirements by serving ninety consecutive days (active duty), at least one day of which occurred during a period of war. Listed below are the periods of war that Congress has designated for VA pension purposes, beginning with World War I (prior wartime periods included the Mexican Border War, Spanish-American War and Indian Wars of which no survivors are alive today).
Periods of War:
World War I: April 6, 1917, through November 11, 1918, or, for those who served in Russia, April 1, 1920. Service after November 11, 1918, and before July 2, 1921, qualifies as wartime service if the veteran had any active service from April 6, 1917, through November 11, 1918.
World War II: December 7, 1941, through December 31, 1946, extended to July 25, 1947, if continuous with service on or before December 31, 1946.
Korean Conflict: June 27, 1950, through January 31, 1955.
Vietnam Era: August 5, 1964, through May 7, 1975. However, February 28, 1961, through May 7, 1975, for a veteran who served in the Republic of Vietnam during that period.
Persian Gulf War: August 2, 1990, through a date to be prescribed by Presidential proclamation or law.
Specific Eligibility – Compensation. In general, veterans (who meet the requirements above) are entitled to disability compensation if (1) they were discharged or released under conditions other than dishonorable, (2) their disease or injury was incurred or aggravated in the line of duty, and (3) the disability is not a result of their own willful misconduct or abuse of alcohol or drugs.
Veterans eligible for disability compensation receive monthly payments. As of December 1, 2009, for a single veteran without dependents, these payments ranged from $123 for a disability rated as 10 percent disabling, to $2,673 for a disability rated as 100 percent disabling. These rates will increase by 3.6% beginning December 1, 2011, with the first increased payments beginning in January 2012. The rates of compensation payments are not automatically adjusted for inflation, and they can be increased only if Congress passes specific enabling legislation. The increase for 2012 is equal to the consumer price index or the cost-of-living formula that determines the Social Security old-age increase.
Before any type of disability rating is assigned and any money paid, the VA must first determine whether the veteran’s disability is service connected. The definition of “service connected” involves the term “In the line of duty.”
For the VA to find a disability or death to be service connected, it must determine that the disability or death was incurred or aggravated during active service in the line of duty or that the death resulted from a disability that was incurred or aggravated in the line of duty during active military service. The phrase, “In the line of duty” means that an injury or disease was incurred or aggravated during a period of active service, unless caused by the veteran’s own willful misconduct or abuse of alcohol or drugs.
Once service connection is established (often the most challenging part of a compensation claim), a disability rating is assigned. This disability rating determines how much the claimant will receive in monthly compensation payments. The disability ratings are to be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. The rating schedule provides 10 grades of disability: 0%, 10%, 20%, 30%, 40%, 50%, 60%, 70%, 80%, 90%, and 100%. A 100% disability rating is also called a total rating because it means that a veteran is totally disabled. The higher the disability percentage assigned, the higher the monthly compensation payment the veteran will receive.
If a service-connected condition increases in severity, the veteran may apply for an increase in the evaluation of the service-connected condition.
All is not lost for a veteran whose injury is service connected but who receives a 0% rating. First of all, the toughest part of the application processed has been achieved – establishing service connection. If the veteran’s injury worsens, the veteran can submit additional medical evidence without having to start the claims process over. Also, the veteran may be entitled to certain benefits within the VA health care arena.
Willful misconduct as a bar. A determination by the VA that an injury or disease was the result of willful misconduct creates a bar to any benefits that may be based on that disability. Similarly, if a veterans death is the result of his or her willful misconduct, the death will not be considered service connected and that persons survivors will not be entitled to dependency and indemnity compensation (DIC) under 38 U.S.C. §1310 (discussed below).
There is a presumption that an injury or death suffered while an individual is on active military service is incurred in the line of duty and is not the result of willful misconduct. To overcome this presumption, the VA must establish by a preponderance of the evidence that the service member engaged in willful misconduct, and that misconduct proximately caused the service member’s injuries or death. Willful misconduct is an act involving conscious wrongdoing or known prohibited action with knowledge of or wanton and reckless disregard of its probable consequences.
There are circumstances where a veteran can receive more than the rate provided for a disability rated at 100% disabling. If a veteran has suffered certain severe disabilities, the veteran may be entitled to special monthly compensation (SMC), which can provide compensation payments at a rate much greater than the 100 percent rate. Severely disabled veterans in need of regular aid and attendance (interpreted as help with certain activities of daily living on a regular basis) or daily health-care services may be eligible for additional compensation.
As noted above, the VA pays a form of compensation to surviving spouses, children, and parents of deceased veterans whose deaths were caused by service-connected conditions dependency and indemnity compensation (DIC). DIC for surviving spouses is not based on the disability or income of the surviving spouse; however, income is a factor when the parents of a deceased veteran have basic eligibility for DIC.
Entitlement to VA compensation benefits is not affected by earned or unearned income. Today the value of the veteran’s estate is never a factor as to entitlement to VA compensation benefits.
On occasion, a veteran may be entitled to both compensation and pension. The VA cannot pay both benefits concurrently. The veteran can either elect which benefit to receive but in most cases the VA will notify the veteran of the dual entitlement and select the benefit paying the highest amount.
Conclusion. Effective representation of claimants before the VA requires a thorough understanding of the differences between compensation and pension. Both benefits are based on disability. Pension, however, is a needs-based program where a claimant must have low income and low assets. Compensation is not based on need or income, nor is it limited to wartime service. On the other hand, in addition to low income and assets, to be eligible for pension benefits, a veteran must have wartime service. Veterans aged sixty-five years and older are conclusively presumed to be permanently and totally disabled for pension purposes. Veterans applying for compensation benefits do not need to have total disability, low income, or wartime service; however, veterans seeking compensation benefits must connect their disability to the period of their military service.