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M21-1, Part III, Subpart v, Chapter 4, Section A – General Information on Elections

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2
3
4

1.  Definitions of Terms


Introduction

This topic contains definitions of election terms, including

Change Date

March 24, 2015

III.v.4.A.1.a.  Definition:  Election

An election is the exercise of a choice of one benefit or type of benefit over another to the total exclusion of the benefit not chosen.
An election may be final and irrevocable or the claimant may elect and reelect as often as desired depending on what the pertinent legislation authorizes.
Elections are divided into the following two categories:
  • initial elections, and
  • reelections.
Note:  A claimant has the right to elect any benefit regardless of whether the greater or lesser benefit is chosen, even though the election results in reducing the benefit payable to his/her dependents.

III.v.4.A.1.b.  Definition:  Initial Election

An initial election is the first election made by a claimant after being informed there is a choice between two or more benefits.
Note:  When a claim is timely filed and the election is timely received, pay the elected benefit retroactive to the date entitlement is shown (less any necessary withholding or offset), as provided by 38 CFR 3.400(j)(1).

III.v.4.A.1.c.  Definition: Conditional Election

conditional election is an inferred election when a claimant who is receiving Old Law or Section 306 Pension indicates an increased disability, which may warrant special monthly pension under current-law pension.  If a payee confirms an election within one year of notification of entitlement to a potential increase undercurrent-law pension, the following situations may be considered elections to establish effective dates of increase:
  • an Old Law or Section 306 Pension payee reports an increased disability, or
  • an Old Law or Section 306 Pension payee reports nursing home status.

III.v.4.A.1.d.  Definition:  Reelection

reelection, if permissible,
  • is the subsequent change from one benefit to another, and
  • must be in writing and specify the benefit the claimant wishes to receive.
Notes:
  • If a claimant elects to receive current-law pension instead of Section 306 Pension or Old-Law Pension, or elects to receive Dependency and Indemnity Compensation (DIC) instead of death compensation, it is generally not permissible to go back and reelect the previous benefit unless certain exceptions apply.
  • Prior to March 24, 2015, an informal claim for benefits may be accepted as an election under 38 CFR 3.701(b).
References:  For more information on elections between compensation and pension, see

2.  Elections Between VA Benefits


Introduction

This topic contains information on

Change Date

November 20, 2017

III.v.4.A.2.a.  Elections Between Compensation and Pension

When a claimant is entitled to both compensation and pension,
  • assume the claimant elects the greater benefit, unless he/she provides information to the contrary, and
  • routinely award the greater benefit at any time without requiring a formal election or reelection.
Exception:  If a claimant is entitled to both compensation and pension and pension would pay the $90 Medicaid nursing home rate, assume the claimant elects the $90 rate as the greater benefit, and inform the claimant in the corresponding decision notice of his/her right to elect compensation.
References:  For information about
  • notifying a Veteran of his/her election options after awarding pension under the circumstances described in the preceding paragraph, see M21-1, Part V, Subpart iii, 3.9.b
  • reducing pension to the $90 Medicaid nursing home rate, see 38 CFR 3.551, and
  • elections between compensation and pension, see 38 CFR 3.701.

III.v.4.A.2.b.  Elections Between Other VA Benefits

Do not assume an election of a greater benefit when the choice of benefits is between
  • compensation or pension and any other type of benefit, or
  • current-law pension under Public Law 95-588 and pension under laws in effect before January 1, 1979.
See the references in the table below for information about processing elections between benefits.
If the election is between …
Then see …
Department of Veterans Affairs (VA) disability compensation and military retired pay
DIC and death compensation
DIC benefits under 38 U.S.C. 1151 and money or property disbursed to settle a legal claim arising from the death of the Veteran
disability compensation for paired organs and extremities and compensation under 38 U.S.C. 1160
Spanish American War Death Pension, Old Law Pension, Section 306 Pension, and current-law pension
any VA benefit and Federal Employees’ Compensation (FEC)
 
Reference:  For more information on paying accrued amounts for elections pending at death, see M21-1, Part VIII, 1.3.a.

III.v.4.A.2.cEffect of Election on Other Children’s Entitlement

With Survivors Pension, DIC, and Survivors’ and Dependents’ Educational Assistance (DEA), two or more children may be eligible to receive the same type of VA benefit based on the service of a Veteran, while at least one child may be eligible for a different type of benefit based on the service of the same Veteran.
When a child elects to receive a benefit that is different from the type of benefit the remaining child(ren) is receiving, VA cannot
  • increase the rate of payment to the remaining child(ren), or
  • pay a rate to each remaining child that is greater than the rate payable if all children were receiving the same type of VA benefit.
Exception:  Per 38 CFR 3.704(a) and 38 CFR 21.3023(a)(1), when a child elects DEA benefits, the rates payable to the remaining beneficiaries receiving Survivors Pension or DIC will be determined as though the child electing DEA benefits did not exist, provided that the child electing DEA benefits is
  • over the age of 18, or
  • became permanently incapable of self-support before reaching the age of 18.
References:  For more information on

III.v.4.A.2.d.  Effective Date of an Election Between VA Benefits

If a beneficiary to whom VA is already paying benefits elects a different VA benefit (and concurrent receipt of both benefits it prohibited), adjust the beneficiary’s award effective the date VA received the election, per 38 CFR 3.400(j)(1).
Important:  Apply the provisions of 38 CFR 3.31 (paying the elected benefit from the first of the month following the date of receipt of the election) if the election will result in an increase in the amount of benefits VA pays the beneficiary.
Exception:  If a beneficiary to whom VA is already paying benefits elects to receive pension at the $90 rate under 38 CFR 3.551(i) (as doing so might ultimately give the beneficiary more money for personal use), adjust the beneficiary’s award effective the date in the LAST PAID DATE field on the AWARD INFORMATION tab in Share.

3.  Forms of Election


Introduction

This topic contains information about the forms of election, including

Change Date

February 27, 2019

III.v.4.A.3.a.  Acceptable Forms of Election

Accept as an election any statement on a formal claim or in correspondence that
  • indicates an intent to apply for a particular benefit, and
  • is signed by the claimant or his/her fiduciary.
Important Identifying a general benefit on VA Form 21-0966, Intent to File a Claim, is not an acceptable form of election.

III.v.4.A.3.b.  Election by a Fiduciary

In order for a fiduciary to elect one benefit to the exclusion of another, the fiduciarymust be
  • appointed by a court of law, or
  • designated by
    • a fiduciary hub, or
    • the Director of a VA medical center when no fiduciary has been appointed for an incompetent patient.
If a fiduciary represents a Veteran who is incompetent
  • do not solicit an election if it would not be to his/her advantage, and
  • refer the case to the fiduciary hub of jurisdiction prior to acceptance of an election, for review and comment as to whether or not an election is advantageous.
Reference:  For more information on incompetent Veterans and waiver of military retired pay, see M21-1, Part III, Subpart v, 5.A.5.

III.v.4.A.3.c.  Acceptable Forms of Election on Behalf of the Claimant

Upon receipt of an election that a member of Congress or a claimant’s VA-recognized power of attorney (POA) provides on a claimant’s behalf, treat it as aninformal election only after asking for and receiving from the claimant (or his/her fiduciary) a signed statement that affirms the election.
Note:  When an election is filed on behalf of the claimant, any evidence needed to support the election or any claim accompanying an election must be received within one year from the date of VA’s request for that evidence.  Otherwise, no further action may be taken on the election.
Reference:  For more information on the submission of elections by a POA or member of Congress, see 38 CFR 3.155(a).

III.v.4.A.3.d.  Election Between Retired Pay and VA Benefits

A Veteran’s application for VA benefits on one of the following forms constitutes an election or waiver of military retired pay in the absence of a specific statement to the contrary, per 38 CFR 3.750(d):
Generally, if a Veteran is receiving military retired pay, including a Veteran on Temporary Disability Retirement List (TDRL), and becomes entitled to disability compensation, VA should take no action to award compensation in the absence of an election or waiver of military retired pay by the Veteran.
Notes:
  • VA discontinued the use of VA Form 21-526 on February 19, 2019.
    • Waivers/elections Veterans made on the form prior to this date remain valid.
    • Continue to accept waivers/elections Veterans make on the formafter this date if any of the exceptions described in M21-1, Part III, Subpart ii, 1.C.8.a, apply.
  • Certain Veterans are entitled to concurrent payment under the National Defense Authorization Act for Fiscal Year 2004.
  • For VA purposes, military retired pay and military retainer pay are both considered retirement pay and are treated the same.
References:  For more information on

4.  Concurrent Payments by VA, Service Departments, and Other Agencies


Introduction

This topic contains information on

Change Date

March 17, 2017

III.v.4.A.4.a.  Prohibition of Concurrent Payments Between VA and Other Agencies

VA, service departments, and other Federal agencies award monetary benefits to Veterans and their dependents because of disability, death, or length of service.
Service department and Federal agency laws
  • contain specific limitations or prohibitions to prevent similar concurrent payment by VA, and
  • provide for elections, waivers, or administrative recoupments allowing the claimant to choose between the available benefits.

III.v.4.A.4.b.  Handling Entitlement to More Than One Benefit

When a claimant is entitled to monetary benefits under more than one provision of a law or regulation,
  • observe the prohibition against duplication of benefits as contained in the38 CFR 3.700 series
  • allow the claimant to elect which benefit to receive, and
  • fully inform the claimant of entitlement to the respective benefits.
Exception:  If a Veteran is entitled to Veterans Pension and is also entitled to receive Survivors Pension based on another person’s service, pay only the greater benefit unless the Veteran elects the lesser benefit.
References:  For more information on
  • the payment of disability compensation or DIC to a VA beneficiary who received benefits under the Radiation Exposure Compensation Act, see
  • a claimant’s right to elect pension or compensation, see 38 CFR 3.701, and
  • entitlement to current-law pension based on the Veteran’s own service and on the basis of any other person’s service, see 38 CFR 3.700(a)(4).

III.v.4.A.4.c.  Reviewing the Claims Folder to Identify Potential Overpayments

Carefully review the claims folder, DD Form 214, Certificate of Release or Discharge from Active Duty, and the Veteran’s application prior to the adjudication of all claims to
  • determine if benefits from the service departments or other Federal agencies are payable, and
  • avoid an overpayment resulting from concurrent payments of disability compensation, or Section 306 or Old-Law Pension, and
    • military retirement pay
    • readjustment pay
    • separation pay
    • Reservists’ Involuntary Separation Benefit (RISP)
    • disability severance pay
    • non-disability severance pay
    • Special Separation Benefit (SSB)
    • retainer pay
    • Voluntary Separation Pay (VSP), or
    • compensation under the FEC.

III.v.4.A.4.d. References to Information About Benefits From Service Departments and Other Federal Agencies

The table below contains references to information about benefits from service departments and other Federal agencies and the prohibition against their concurrent payment with certain VA benefits.
If the benefit payable is …
Then see …
  • military retirement pay, or
  • retainer pay
  • disability severance pay
  • separation pay under 10 U.S.C. 1174
  • SSB under 10 U.S.C. 1174a
  • readjustment pay under former 10 U.S.C. 3814(a) or 10 U.S.C. 687 (as in effect on September 14, 1981)
  • VSP, or
  • RISP
non-disability severance pay under former Chapters 359, 360, 859, and 860 of 10 U.S.C. (as in effect on September 14, 1981)
FEC
11-20-17_Key-Changes_M21-1III_v_4_SecA.docx May 16, 2019 64 KB
Historical_M21-1III_v_4_SecA_01-22-16.doc May 16, 2019 115 KB
Historical_M21-1III_v_4_SecA_5-18-15.doc May 16, 2019 107 KB
3-17-17_Key-Changes_M21-1III_v_4_SecA.docx May 16, 2019 64 KB
2-27-19_Key-Changes_M21-1III_v_4_SecA.docx May 16, 2019 53 KB
Historical_M21-1III_v_4_SecA_9-23-16.docx May 16, 2019 56 KB
Historical_M21-1III_v_4_SecA_3-17-17.docx May 16, 2019 61 KB
Change-May-18-2015-Transmittal-Sheet-M21-1III_v_4_SecA_TS.docx May 16, 2019 38 KB
12-9-15_Key-Changes_M21-1III_v_4_SecA.docx May 16, 2019 56 KB
Transmittal-Sheet-III_v_TS.docx May 16, 2019 37 KB
Transmittal-Sheet-M21-MRIII_v_1_SecA_TS.docx May 16, 2019 38 KB
Change-March-24-2015-Transmittal-Sheet-M21-1MRIII_v_4_SecA_TS.docx May 16, 2019 39 KB
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