Veterans Affairs: Basic Eligibility for Disability Benefit Programs
Veterans Affairs: Basic Eligibility for
Disability Benefit Programs
Updated November 19, 2008
Douglas Reid Weimer
American Law Division
Veterans Affairs: Basic Eligibility for
Disability Benefit Programs
A broad range of benefits is offered to American veterans and to certain
members of their families by the United States Department of Veterans Affairs (VA).
Among these benefits are various types of financial benefits and assistance, including
two disability programs: disability compensation and pensions which pay monthly
cash benefits to disabled veterans. Disability compensation provides a monthly
benefit to veterans who are disabled as a direct result of their military service.
Disability pension is paid to wartime veterans who have limited income, are no
longer able to work, or are aged 65 or older. Additional basic criteria must be met
in order to be eligible to receive either of these benefits.
This report examines the eligibility criteria and the fundamentals of the VA-
administered disability benefit programs and related issues. It supplements and
condenses the relevant materials that are available from the VA and its website. It
also provides specific citations for further information and more in-depth analysis of
information contained herein.
In troduction ......................................................1
Definition of “Veteran”.........................................2
Discharge Criteria ............................................3
Whether the Military Service was During Time of War................6
Service Requirements: Length of Duty.............................7
Disability Benefit Programs......................................9
Requirements for the Award of Service-Connected Disability
Requirements for the Award of a Non-Service-Connected Pension......10
Veterans Affairs: Basic Eligibility for
Disability Benefit Programs
The United States Department of Veterans Affairs (VA) offers a broad range of
benefits to American veterans and to certain members of their families.1 Among the
benefits extended to veterans are: health care and related services, such as nursing
homes, clinics, and medical centers; education, vocational training, and related career
assistance; home financing; life insurance; burial benefits; benefits for certain family
survivors and financial benefits, including disability compensation and pensions.2
This report focuses upon the basic eligibility/entitlement requirements for disability
benefits, which the VA administers through two programs, disability compensation3
and disability pension.
1 The VA was established as an executive department by the Department of Veterans Affairs
Act (P.L. 100-527, 102 Stat. 2635 [October 25, 1988]). The predecessor of the Department,
the Veterans Administration, had been established as an independent agency under the
President by Executive Order No. 5398 of July 21, 1930, in accordance with the act of July
3, 1930 (46 Stat. 1016), which authorized the President to consolidate and coordinate the
U.S. Veterans Bureau, the Bureau of Pensions, and the National Home for Volunteer
Soldiers. See [http://www.va.gov]. Within the VA, the Veterans Benefits Administration
(VBA) administers nonmedical benefits programs for veterans and their dependents and
survivors. These benefits include veterans’ compensation and pensions, survivors’ benefits,
education and rehabilitation assistance, home loan benefits, certain burial benefits, and
insurance coverage. See [http://www.vba.gov]. See generally Federal Benefits for Veterans
and Dependents, published by the Department of Veterans Affairs (2008 edition) (cited to
afterward as “Federal Benefits”). See [http://www1.va.gov/opa/vadocs/current_benefits.asp]
for the publication online.
CRS has available on its website a number of reports analyzing specific constituent
areas of interest. See, e.g., CRS Report RS22902, Veterans Benefits: An Overview, by Carol
D. Davis, Sidath Viranga Panangala, and Christine Scott; and CRS Report RL33985,th
Veterans’ Benefits: Issues in the 110 Congress, by Carol D. Davis, Shannon S. Loane,
Meredith Peterson, Christine Scott, Libby Perl, and Douglas Reid Weimer.
2 See CRS Report RL33993, Veterans Health Care Issues, by Sidath Viranga Panangala;
CRS Report RS20533, VA-Home Loan Guaranty Program: An Overview, by Bruce E. Foote
and Meredith Peterson; CRS Report RS21545, Military Funeral Honors: Frequently Asked
Questions, by Mari-Jana “M-J” Oboroceanu; and CRS Report RL32769, Military Death
Benefits: Status and Proposals, by David E. Burrelli and Jennifer R. Corwell.
3 See CRS Report RL34626, Veterans’ Benefits: An Overview of Benefits for Disabled
Veterans, by St Jalisa E. Miller, Christine Scott, and Carol D. Davis, for an overview of the
broad range of benefits available to disabled veterans, including rehabilitation and
Both of these programs pay monthly cash benefits to disabled veterans.
Disability compensation provides a monthly benefit to veterans who are at least 10%
disabled as a result of their military service.4 Disability pension is paid to wartime
veterans with limited income, who are no longer able to work, or who are aged 65 or
older. The pension is not related to a service-connected injury or medical condition,
and takes into consideration the material needs of the veteran (i.e., it is a “needs-
based” pension).5 A veteran cannot simultaneously receive both disability
compensation and a disability pension.
The VA uses a two-step process to evaluate disability claims, as well as to
determine eligibility for other VA benefits. First, the claimant must demonstrate that
he or she is eligible for the VA benefit. That is, the claimant must prove that he or
she is a bona fide veteran and verify certain related matters. In this sense, the
eligibility relates to the veteran’s general qualification(s) for the benefit(s). Second,
the veteran must prove entitlement to the particular benefit being sought.6 There is
no deadline or time limit for applying for disability benefits.
Step One: Eligibility Criteria
Definition of “Veteran”
In order to be eligible for most VA benefits, the claimant must be a veteran or,
in some circumstances, the survivor or the dependent of a veteran. By statute, a
“veteran” is defined as a “person who served in the active military, naval, or air
service, and who was discharged or released therefrom under conditions other than
employment programs, automobile and special adaptive equipment grants, clothing
allowances, housing grants, and other benefits.
4 The VA evaluates the severity of a veteran’s disability and determines what percentage of
employment capacity is impaired. For example, a 10% disability (physical or psychological)
is a relatively minor disability, whereas an 80% disability determination represents a
significant impairment. For a more comprehensive explanation of how benefits are awarded
through a rating system, see CRS Report RL33323, Veterans Affairs: Benefits for Service-
Connected Disabilities, by Douglas Reid Weimer.
5 Federal Benefits at 29. See CRS Report RS22804, Veterans Benefits: Pension Benefit
Programs, by Carol D. Davis and Christine Scott.
6 For example, in order to be entitled to receive the disability compensation, a veteran must
provide sufficient evidence of certain elements (e.g., current diagnosis, medical evidence
of an in-service occurrence, and link between the in-service occurrence and the current
disability) in order to be entitled to receive the disability compensation. See discussion at
9-10. See CRS Report RL33323, Veterans Affairs: Benefits for Service-Connected
Disabilities, by Douglas Reid Weimer, for a more detailed discussion of the process.
7 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d).
In evaluating the evidence to determine whether the applicant is a “veteran” for
the purposes of VA benefits, the VA relies substantially upon military department
service records. The VA is bound by information that the service documents contain.8
Generally speaking, the VA findings will be in accord with the information contained
in the applicant’s service records.9
Such records may include an original service department record; a copy issued
by the service department with the certification that it is a true document; or a copy
submitted by an accredited agent, attorney, or service representative with special
training, who certifies that it is a copy of an original service document or a copy of
a copy of such a document.10 In addition to meeting these criteria, the document
must contain data regarding the length, time, and character of the service, and the VA
must believe that the document is genuine and accurate.11 If the claimant does not
provide the requisite documentation or other evidence, or the submitted
documentation does not meet the requirements, the VA must seek to verify service
directly from the appropriate military service department.12
The statutory definition of “veteran” requires that the individual has been
discharged or released from military service “under conditions other than
dishonorable.”13 There are currently five types of discharges issued by the military
services: 1) honorable discharge (HD); 2) discharge under honorable conditions
(UHC), or general discharge (GD); 3) discharge under other than honorable
conditions (UOTHC), or undesirable discharge (UD); 4) bad conduct discharge
(BCD); and 5) dishonorable discharge (DD).14
The language of the statute does not precisely match the current categories of
the discharges, and the VA often determines on a case-by-case basis whether the
claimant’s discharge satisfies any of the criteria and which category of discharge
applies. In most cases, the VA considers honorable discharges and discharges under
honorable conditions to fall within the “conditions other than dishonorable” category,
8 Venturella v. Gober, 10 Vet. App. 340, 341-342 (1977); Duro v. Derwinski, 2 Vet. App.
9 38 C.F.R. § 3.203.
10 38 C.F.R. § 3.203(a)(1). See CRS Report RS21282, Military Records and Unit Histories:
A Guide to Locating Sources, by Julissa Gomez-Granger and Kim Walker Klarman.
11 38 C.F.R. § 3.203(a)(2), (3).
12 Duro, 2 Vet. App. at 532.
13 38 U.S.C. § 101(2); 38 C.F.R. § 3.12(a).
14 Barton F. Stichman et al., Veteran Benefits Manual, at § 2.2.1 (Cited to afterward as
“Veterans Benefits Manual”).
and will usually qualify the claimant as a veteran under the first step of the eligibility
test.15 Usually, honorable and general discharges qualify a veteran for most benefits.16
A bad conduct discharge from a special court-martial and other discharges made
under other than honorable conditions may or may not disqualify the claimant from
being considered a veteran for purposes of benefits eligibility.17 In the case of such
a discharge, the VA will make a special “character of service determination,” based
on the particular facts in the claimant’s case. On this basis, the VA will determine
whether the veteran was separated from service under “dishonorable conditions” or
under “other than dishonorable conditions.” The VA will review of the entire period
of the claimant’s enlistment(s) to assess the quality of the service and to determine
whether it is sufficient to deserve the award of veterans’ benefits.18 If a claimant has
served more than one period of enlistment, he or she may have two or more different
The VA Federal Benefits guide offers the following on discharges:
Dishonorable and bad conduct discharges issued by general courts-martial may
bar VA benefits. Veterans in prison and parolees may be eligible for certain VA
benefits. VA regional offices can clarify the eligibility of prisoners, parolees and
individuals with multiple discharges issued under differing conditions. VA
benefits will not be provided to any veteran or dependent wanted for an19
outstanding felony warrant.
Certain exceptions permit the award of VA benefits, even if the character of the
discharge would ordinarily bar VA benefits. For example, if it is determined that the
claimant was insane at the time of the offense leading up to the discharge, the
claimant may be granted VA benefits. There does not need to be a direct connection
between the insanity and the misconduct.20
The Requirement of Active Service
An applicant must have “active military, naval, or air service” in order to be
considered a veteran for VA benefits.21 However, not all types of service are22
considered active military service for this purpose.
19 Federal Benefits at vii.
20 38 U.S.C. § 5303(b).
21 See note 13.
22 For example, National Guard and Reserve duty are not considered active service unless
an individual performing this duty was disabled or died from a disease or injury incurred or
aggravated in the line of duty. (38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a)).
The VA Federal Benefits guide states the following on the active service
Eligibility for most VA benefits is based upon discharge from active military
service under other than dishonorable conditions. Active service means full-time
service, other than active duty for training, as a member of the Army, Navy, Air
Force, Marine Corps, Coast Guard, or as a commissioned officer of the Public
Health Service, the Environmental Science Services Administration or the
National Oceanic and Atmospheric Administration, or its predecessor
organization, the Coast and Geodectic [sic] Survey. Men and women veterans23
with similar service are entitled to the same VA benefits.
Active service includes 1) active duty;24 2) a period of active duty for training
during which the person was disabled or died from an injury or disease incurred or
aggravated in the line of duty;25 and 3) any period of inactive duty for training during
which the person was disabled or died from an injury incurred or aggravated in the
line of duty or from certain health conditions incurred during the training.26
23 Federal Benefits at vii.
24 Active duty is considered to include 1) Full-time service in the Army, Navy, Marine
Corps, Air Force, or Coast Guard, other than active duty for training (38 U.S.C. §
101(21)(A); 38 C.F.R. § 3.6(b)(1)); 2) Full-time service as a commissioned officer in the
Public Health Service ( 38 U.S.C. § 101(21)(B); 38 C.F.R. § 3.6(b)(2)); 3) Full-time service
as a commissioned officer at the Coast and Geodetic Survey, Environmental Services
Administration, or National Oceanic and Atmospheric Administration (38 U.S.C. §
§ 101(21)(D); 38 C.F.R. § 3.6(b)(4)); 5) Attendance by active-duty members at certain prep
schools associated with military academies (38 C.F.R. § 3.6(b)(5)); and 6) Authorized travel
to or from such duty or service (38 U.S.C. § 101(21)(E); 38 C.F.R. § 3.6(b)(6)).
25 Active duty for training is a tour of active duty that is used for training members of reserve
and other components to fill the Armed Forces during time of war or national emergency.
Active duty for training has been determined to mean: 1) full-time duty for training
performed by Reservists (38 U.S.C. § 101(22)(A); 38 C.F.R. § 3.6(c)(1)); 2) full-time duty
for training purposes as a commissioned officer in the Reserved Corps of the Public Health
Service (38 U.S.C. § 101(22)(B); 38 C.F.R. § 3.6(c)(2)); 3) full-time training duty by
members of the Air or Army National Guard of any state (38 U.S.C. § 101(22)(C); 38 C.F.R.
§ 3.6(c)(3)); 4) duty by members of the Senior ROTC program on field training or a practice
cruise (38 U.S.C. § 101 (22)(D); 38 C.F.R. § 3.6(c)(4)); and 5) authorized travel to and
from duty for training (38 U.S.C. § 101(22)(E); 38 C.F.R. § 3.6(c)(6)).
26 38 U.S.C. § 101(24). Inactive duty for training has been defined to mean: 1) duty, other
than full-time duty, for Reservists (38 U.S.C. § 101(23)(A); 38 C.F.R. § 3.6(d)(1)); 2) other
duties authorized for Reservists performed on a voluntary basis (38 U.S.C. § 101(23)(B);
38 C.F.R. § 3.6(d)(2)); 3) training (other than active duty for training) by a member of, or
applicant for membership in, Senior ROTC (38 U.S.C. § 101(23)(C); 38 C.F.R. § 3.6(d)(3));
and 4) for the members of the Air or Army National Guard of any state, such training means
duty other than full-time duty (38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d)(4)).
Additional circumstances of service, and whether they are deemed to be active
military service, are set out in VA statutes.27 For example: if on authorized travel to
and from the performance of active duty training or inactive duty for training, the
person is disabled or dies while proceeding directly to or returning from such duty,
the duty will be considered to be active duty for training or inactive duty for
The determination of whether a claimant has met the “active service”
requirement may not be a simple process. It is possible that the claimant and the VA
may have to scrutinize the claimant’s service record(s) to determine whether service
fits into one of the many categories of active service, or whether an exception has
been made for his/her service, so that it is considered to be active service for the
purposes of veterans’ benefits. In addition, a claimant may have more than one
period of service, which may further complicate the determination.
Whether the Military Service was During Time of War29
Whether or not a veteran has served during time of war may impact his/her
potential VA benefits. All military service is classified as either wartime or peacetime
service. Certain benefits are extended only to veterans with wartime service.30
Congress has set out the periods of “wartime” for the purposes of veterans’
pensions and other benefits.31 To be considered to have “served during wartime” by
the VA, a veteran does not have to have served in an actual combat zone, but during
the specified periods of war set out below. Those time periods not designated by
Congress as “wartime” are considered to be “peacetime.” If a veteran served his/her
duty part during wartime and part during peacetime, the veteran would meet the
“wartime” criteria if the he or she served ninety consecutive days, at least one day of
which occurred during a period designated as wartime.
Following is a list of those periods of “wartime” designated by Congress:32
!Indian Wars — January 1, 1817, through December 31, 189833
!Spanish-American War — April 21, 1898, through July 4, 190234
27 38 U.S.C. §§ 101, 106. See Federal Benefits at vii-viii.
28 38 U.S.C. § 106(d); 38 C.F.R. § 3.6(e).
29 See CRS Report RS21405, U.S. Periods of War, by Barbara Salazar Torreon.
30 For instance, only veterans having wartime service are eligible for non-service connected
disability pension benefits (38 U.S.C. § 1521(j)).
31 38 U.S.C. § 101 (6)-(11); 38 C.F.R. § 3.2.
32 See Federal Benefits at 2.
33 See 38 C.F.R. § 3.2(a).
34 38 U.S.C. § 101(6); 38 C.F.R. § 3.2(b).
!Mexican Border War — May 19, 1916, though April 5, 191735
!World War I — April 6, 1917, through November 11, 1918;
extended to April 1, 1920; by regulation extended to July 1, 1921,
under certain specific conditions36
!World War II — December 7, 1941, through December 31, 1946,
extended to July 25, 194737
!Korean Conflict — June 27, 1950, through January 31, 195538
!Vietnam Era — August 5, 1964, through May 7, 197539
!Persian Gulf War — August 2, 1990, through a date to be prescribed
by Presidential proclamation or law40
Service Requirements: Length of Duty
Prior to September 8, 1980, there was no minimum length of service necessary
to vest most VA benefits. However, for an individual who enlisted after September
8, 1980, there are now certain minimum length of service requirements. The general
requirement is either 24 months of continuous active duty or the “full period” for
which the service person was called or ordered to active duty.41
Several significant exceptions exist to this general rule. For example, service-
connected compensation benefits are exempt from the minimum active duty
requirements. Thus, a veteran with a disease or injury incurred during active service
should almost always be able to receive service-connected compensation for his/her
condition or disability.42 Other significant exceptions to the minimum service
requirements include claims for VA insurance benefits;43 hardship discharges;44 and
persons retired or separated from service because of a service-related disability.45
If the former service member does not fall within one of the two eligible
categories (24 months of active duty or the “full period” of active duty), or falls
within one of the statutory exceptions, then the veteran has not completed a minimum
period of active duty and is “not eligible for any benefit under Title 38, United States
35 38 U.S.C. § 101(30); 38 C.F.R.§ 3.2(h).
36 38 U.S.C. § 101(7); 38 C.F.R. § 3.2(c).
37 38 U.S.C. § 101(8); 38 C.F.R. § 3.2(d).
38 38 U.S.C. § 101(9); 38 C.F.R. § 3.2(e).
39 38 U.S.C. § 101(29); 38 C.F.R. § 3.2(f).
40 38 U.S.C. §§ 101(33), 1501(4); 38 C.F.R. §§ 3.2(I), 3.3(a)(3), 3.17, 3.54(a)(3)(viii). At
the present time, no termination date has been established.
41 38 U.S.C. § 5303A(b); 38 C.F.R. § 3.12a(a)(1).
42 38 U.S.C. § 5303A(b)(3)(C); 38 C.F.R. § 3.12a(d)(4).
43 38 U.S.C. § 5303A(b)(3)(E); 38 C.F.R. § 3.12a(d)(5).
44 38 U.S.C. § 5303A(b)(3)(A); 38 C.F.R. § 3.12a(d)(1).
45 38 U.S.C. § 5303A(b)(3)(B); 38 C.F.R. § 3.12a(d)(2).
Code or under any law administered by the Department of Veterans Affairs based on
that period of active service.”46
Impediments to VA Benefits: Willful Misconduct
If the VA determines that an injury or disease resulted from “willful
misconduct” on the part of the claimant, such misconduct may serve as a bar for any
disability benefits. Regulations define willful misconduct as “deliberate or intentional
wrongdoing with knowledge of or wanton or reckless disregard of its probable
consequences.”47 Such willful misconduct is an act that involves conscious48
wrongdoing or a known prohibited action.
Veterans whose health conditions or disabilities resulted from willful
misconduct may not receive compensation from either the non-service-connected4950
pension plan or the service-connected disability compensation program. Likewise,
vocational rehabilitation benefits and certain other benefits will be denied, as such51
benefits are based on a service-connected condition. Customarily, the VA reviews
all of the circumstances of each claimant’s case to determine whether there was
willful misconduct on the part of the claimant.
For the purpose of VA benefits, alcohol abuse has been defined as “the use of
alcoholic beverages over time, or such excessive use at any one time, sufficient to
cause disability to or death of the user.”52 Alcohol abuse is deemed to be “willful
misconduct,” even though the “simple drinking of alcoholic beverage is not of itself
The VA has defined drug abuse rather broadly. For the purposes of VA
benefits, drug abuse has been defined as the use of an illegal drug, the use of a
prescription drug illegally or illicitly obtained, the use of a drug for a purpose other
than that for which it was medically intended, or the use of a drug (any substance
46 38 U.S.C. § 5303A(b)(1); 38 C.F.R. § 3.12a(b).
47 38 C.F.R. § 3.1(n)(1).
49 38 U.S.C. § 1521(a); 38 C.F.R. § 3.301(b).
50 38 U.S.C. § 105(a); 38 C.F.R. § 3.301(a).
51 38 U.S.C. § 3102.
52 38 C.F.R. § 3.301(d).
53 38 C.F.R. § 3.301(c)(2).
other than alcohol) to enjoy its intoxicating effect.54 Should the claimant’s use of a
drug coincide with any portion of this definition, then the claimant’s use is
considered drug abuse. Any resultant death or disability is then not considered to
have occurred in the line of duty.55
The VA considers it not to be a case of willful misconduct, however, when a
drug is used for medical purposes or when during the use of drugs for medical
purposes, addiction or habituation to drugs results from a service-connected
disability.56 Accordingly, if a claimant develops a medical problem because of the
use of prescribed medications used as prescribed to respond to a service-connected
problem, the resultant problem could be considered to be service-connected and not
Under certain circumstances, the VA will consider the effects of venereal
disease not to be the result of willful misconduct. Thus, disabilities that result from
venereal disease contracted during a period of military service may be compensable.57
However, such compensation may be withheld if it is determined that the venereal
disease predated military service and that the medical problems were a result of the
progress of the disease.58
Step Two: Entitlement to Disability Benefits
Disability Benefit Programs
Once it has been determined that the claimant is eligible for veterans’ benefits,
then it must be determined whether the claimant is entitled to certain benefits. Again,
there are two basic disability benefit programs for veterans: the disability
compensation program and the pension program. The disability compensation
program is service-connected and the pension program is non-service-connected.
54 Id. § 3.301(d).
56 38 C.F.R. § 3.301(c)(3).
57 38 C.F.R. § 3.301(c)(l).
Requirements for the Award of Service-Connected
The award of service-connected disability compensation has several
requirements. First, the fundamental eligibility requirements discussed above —
service and discharge requirements — must be met. In addition, the veteran must
prove three elements: 1) a medical diagnosis of the current disability; 2) medical
evidence, and in some instances lay evidence, of the in-service occurrence or
worsening of an injury or disease; and 3) a link between the in-service-incident or the60
worsening of a disease or injury and the current disability. If the VA is satisfied
that these three elements are proved, then the VA determines the severity of the61
disability. The VA assigns a percentage evaluation from 0% to 100% for the
amount of disability that the VA determines that the veteran has sustained.62
After the VA determines the percentage of disability, the VA sets an effective63
date for the award of the disability compensation and payments begin to the veteran.
Should the VA deny disability benefits, or should the veteran disagree about the
percentage determination, the veteran may appeal the decision(s) through a VA
Requirements for the Award of a Non-Service-Connected
Like the service-connected disability compensation, the fundamental eligibility
requirements of discharge and active wartime service must be met prior to the award
of a non-service-connected pension. Then, several additional criteria must be met.
First, the veteran must have a limited income,64 and the VA must ascertain that the
veteran’s net worth does not provide sufficient income to meet his/her needs, known
as the “needs test.”65 Second, the veteran must be permanently and totally disabled
59 See CRS Report RL33323, Veterans Affairs: Benefits for Service-Connected Disabilities,
by Douglas Reid Weimer. The report details the preparation and evaluation of veterans’
claims, including the VA rating system. Current legislation is also discussed in the report.
60 Veteran Benefits Manual at § 3.1.5.
62 38 U.S.C. § 1155; 38 C.F.R. pt. 4. See CRS Report RL33991, Disability Evaluation of
Military Servicemembers, by Christine Scott, Sidath Viranga Panangala, Sarah A. Lister,
and Charles A. Henning.
63 Rates of disability compensation are set by statute. See 38 U.S.C. § 1114 for the rates of
wartime disability compensation.
64 38 U.S.C. § 1521; 38 C.F.R. §§ 3.271-273.
65 38 U.S.C. § 1522; 38 U.S.C. § 3.274.
or aged 65 at the time of filing the pension application.66 Finally, the disability of the
veteran must not be attributable to the willful misconduct of the veteran.67
Procedurally, a veteran’s application for pension benefits is reviewed by the VA
regional office adjudicators. They will first determine the basic eligibility of the
applicant for pension benefits. After this fundamental eligibility is established, the
adjudicators will look at the claimant’s income and net worth. If the claimant’s
income or net worth is a bar to the pension benefits, the claim will be denied without
a determination of the claimed disability. If the income or net worth does not seem
to serve as a bar to pension benefits, the pension claim is sent to the rating board for
a disability determination.68
The disability determination is undertaken on a case by case basis. Congress has
provided some guidance in this process. Specifically, a veteran is considered
permanently and totally disabled if the veteran is in any of the following
circumstances: 1) nursing home patient for long term care because of a disability; 2)
disabled, as determined by the Commissioner of Social Security for the payment of
Social Security benefits; 3) unemployable because of a disability which is reasonably
certain to continue through the claimant’s life; or 4) suffering from a) a disability
adequate to render it impossible for the average person to be gainfully employed, if
the disability is expected to continue for the life of the person; or b) a disease or
disorder determined by the Secretary of Veterans Affairs to per se result in permanent
and total disability.69 Veterans who are aged 65 or older and apply for a pension are
presumed to be permanently and totally disabled for pension purposes. Hence, a
disability determination is not required for a veteran aged 65 or older to be granted
After the disability status is determined,71 pension benefits are paid to the
claimant on a monthly basis.
66 38 U.S.C. § 1521(a); 38 C.F.R. § 4.17.
67 See discussion at pp. 8-9.
68 Veterans Benefits Manual at § 6.1.2.
69 38 U.S.C. § 1502.
70 38 U.S.C. § 1513.
71 The monthly benefit is offset by any other income that the veteran may have. See 38
C.F.R. § 3.275(b).