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M21-1, Part V, Subpart i, Chapter 1 – Overview of Requirements and Development for Pension and Parents’ Dependency and Indemnity Compensation (DIC)

Overview


In This Chapter

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

1.  General Information on Types of Pension and Entitlement Requirements


Introduction

This topic contains information on the eligibility requirements for pension, including

Change Date

December 9, 2016

V.i.1.1.a.  Definition:  Pension

Pension is a needs-based benefit paid to
  • a wartime Veteran because of
  • permanent and total disability, or
  • having attained age 65, or
  • a surviving spouse or surviving child because of a wartime Veteran’s death.
Note:  A Veteran’s service-connected (SC) disabilities may be combined with his/her non-service-connected (NSC) disabilities for purposes of finding the Veteran permanently and totally disabled for pension.
References:  For more information on

V.i.1.1.b.  Types of Pension

The Department of Veterans Affairs (VA) currently pays the following three types of pension:
  • pension (formerly known as Improved Pension), per Public Law (PL) 95-588
  • Section 306 Pension, per PL 86-211, and
  • Old-Law Pension.
Notes:
  • Pension under PL 95-588 is sometimes called “current-law pension” when it is necessary to distinguish it from Section 306 Pension and Old-Law Pension.
  • When it is necessary to distinguish current-law pension for Veterans from current-law pension for survivors, refer to Veterans Pension and Survivors Pension.

V.i.1.1.c.  New Claimants Must Qualify for Current-Law Pension

Because the Old-Law and Section 306 Pension programs have been phased out, a person filing a new claim for pension benefits must qualify for current-law pension.
If current-law pension entitlement cannot be established, deny the claim.
Reference:  For more information on the Old-Law and Section 306 Pension programs, see M21-1, Part V, Subpart i, 1.3.

V.i.1.1.d.  Overview of Pension Entitlement Requirements

Entitlement to VA pension benefits is based on a Veteran’s characters of discharge and meeting the
  • wartime service requirement, and
  • minimum active duty service requirement, where applicable.
The claimant’s, and all dependents’ income and net worth are also considered.
A claimant’s net worth
  • is a factor in determining entitlement to current-law pension and for continuing entitlement to Section 306 Pension, but
  • is not a factor in determining continuing entitlement to Old-Law Pension.
Note:  If a claim does not meet one or more of the eligibility requirements, deny the claim.  Do not develop or rate the claim.
 References:  For more information on

2.  Service Requirement for Pension Eligibility


Introduction

This topic contains information on the service requirements for pension eligibility, including

Change Date

January 2, 2018

V.i.1.2.a.  Wartime Service Requirement for Veterans Pension

Under 38 U.S.C. 1521(j), Veterans must meet a wartime service requirement to be eligible for pension.
Wartime service for pension is established if a Veteran served in the active military, naval, or air service for
  • at least 90 days during a period of war
  • at least 90 consecutive days and such period began or ended during a period of war
  • a total of 90 or more days during one or more wartime periods, or
  • any amount of time during a period of war and
    • was discharged or released for a disability incurred in or aggravated by service, or
    • had an SC disability at the time of discharge that would have justified a discharge for disability.
Notes:
  • Active military, naval, or air service includes active duty and may include active duty for training (ADT) or inactive duty for training (IADT) if the Veteran has SC conditions due to ADT or IADT.
  • “Active military, naval, or air service” is sometimes shortened to “active service.”
References:  For more information on the

V.i.1.2.b. Wartime Service Requirement for Survivors Pension

Under 38 U.S.C. 1541(a) and 1542, a Veteran’s survivors may be eligible for pension if the Veteran
  • met the wartime service requirement for Veterans Pension, or
  • at the time of his/her death, was receiving (or entitled to receive) compensation for an SC disability based on service during a period of war.
References:  For more information on the wartime service requirement for

V.i.1.2.c. Pension Wartime Periods Table

The following table provides the beginning and ending dates of qualifying wartime periods for pension benefits.
Wartime Period
Beginning and Ending Dates
Mexican Border Period
May 9, 1916, through April 5, 1917 for Veterans who served in Mexico, on its borders, or adjacent waters
World War I
April 6, 1917, through November 11, 1918; for Veterans who served in Russia, April 6, 1917, through April 1, 1920
World War II
December 7, 1941, through December 31, 1946
Korean Conflict
June 27, 1950, through January 31, 1955
Vietnam Era
August 5, 1964, through May 7, 1975; for Veterans who served “in country” before August 5, 1964, February 28, 1961, through May 7, 1975
Gulf War
August 2, 1990, through a date to be set by law or Presidential Proclamation
Reference:  For more information on verifying service, see M21-1, Part III, Subpart ii, 6.B.2.a.

V.i.1.2.d. Minimum Active Duty Service for Pension

In addition to the wartime service requirement for pension and an other-than-dishonorable military service discharge, Veterans of the Gulf War and any future wartime periods must generally have met a minimum active duty service requirement to be eligible for Veterans Pension or for their survivors to be eligible for Survivors Pension.
In order to fulfill the minimum active duty service requirement, the Veteran must have
  • completed 24 months of continuous active duty
  • completed the full period for which they were called or ordered to active duty, or
  • been discharged within one year before the expiration of the term of his/her enlistment under 10 U.S.C. 1171 or 1173 for hardship discharge on the DD Form 214, Certificate of Release or Discharge from Active Duty.
Note:  If the Veteran was, at time of death, receiving or entitled to received compensation for an SC disability based on service during a period of war, the surviving spouse is also barred from receiving benefits based on the same period of active duty during a period of war.
Important:
  • The minimum active duty service requirement is specific to a period of service.  Therefore, the wartime service requirement must be met during the minimum active duty period for pension eligibility to exist.
  • If the Veteran served during a wartime period and was discharged or released for a SC disability, then this period of service meets the active duty service requirement.
References:  For more information on

V.i.1.2.e. Examples:  Minimum Active Duty Service for Pension

Below are four examples of how a Veteran’s minimum active duty and wartime service apply to the Veteran’s (or survivor’s) pension eligibility. (Assume all Veterans originally enlisted after September 7, 1980.).
Example
Does this Veteran’s service qualify for pension?
A Veteran had 24 continuous months of active duty which ended on August 3, 1990.
Yes.  The Veteran served 24 continuous months of active duty that ended during a wartime period; therefore, the minimum active duty service requirement is met.  The wartime service requirement is also met because the Veteran served at least 90 consecutive days that ended during a wartime period.
A Veteran had 24 continuous months of active duty between 1985 and 1987.  The Veteran then had a later, separate period of service from August 1, 1990 to January 1, 1991.  However, the DD 214for the second period of service shows the Veteran did not complete the full period that he was ordered to serve and discharge reason is clerical error.
No.  Although the Veteran served 24 continuous months of active duty, from 1985-1987, it was during peacetime and does not qualify for pension.  The Veteran’s second, five-month period of service was within a wartime period and meets the wartime service requirement, but does not meet the minimum active duty service requirement.
A Veteran had fewer than 90 days of active duty served during the Gulf War period; however, the DD 214 shows the Veteran served the full period that she was ordered to serve.  (The Veteran has no SC disability.)
No. Although the Veteran’s service meets the minimum active duty service requirement (because she served the full period she was ordered to serve), the Veteran’s service does not meet the pension wartime service requirement because she served fewer than 90 days during the wartime period.
A Veteran has an SC disability rated 10-percent disabling, is receiving compensation, and is now applying for pension.  The Veteran served 100 days during the Gulf War period; however, due to a clerical error, the Veteran didnot complete the full period that he was ordered to serve.  (He was not released from service because of his SC disability.)
Yes.  The Veteran meets the 90-day wartime service requirement for pension. Although he does not meet the minimum active duty service requirement, he does not need to. Under 38 CFR 3.12a(d)(3), Veterans with a compensable SC disability are exempt from the requirement.
Note:  In this example, if the Veteran did not have a compensable SC disability, he would not be eligible for pension.
Note:  If service documents do not state a reason for discharge, development may be required.
Reference:  For more information on exceptions to the minimum active duty service requirement, see M21-1, Part III, Subpart ii, 6.B.1.c.

3.  Continuing Entitlement to Section 306 Pension and Old Law Pension


Introduction

This topic contains information on continuing entitlement to Section 306 Pension and Old-Law Pension, including

Change Date

August 11, 2016

V.i.1.3.a.  Dates of Entitlement for Section 306 and Old Law Pension

The Section 306 Pension and Old-Law Pension programs are referred to as “protected” programs.  Entitlement to these pension programs is restricted to beneficiaries who were continuously entitled to receive benefits from the dates on which the programs were phased out until the present.
The last date on which entitlement could be established to
  • Old-Law Pension was June 30, 1960, and
  • Section 306 Pension was December 31, 1978.
Notes:
  • These benefits are not entirely protected because the
    • hospital reduction provisions of 38 CFR 3.551 apply, and
    • benefits can be discontinued due to fraud, treason, subversion, or incarceration.
  • The fugitive felon provisions of 38 U.S.C. 5313B do not apply to Section 306 or Old Law Pension.
Reference:  For specific information about the Section 306 Pension and Old-Law Pension programs, see M21-1, Part V, Subpart iii, 1.C.

V.i.1.3.b.  Rate Adjustments for Section 306 and Old Law Pension

Generally, Section 306 and Old-Law beneficiaries continue to receive the rates to which they were entitled on their respective phase-out dates.  Section 306 and Old-Law pensioners
  • do not receive cost-of-living increases
  • do not receive a rate increase because of changes such as reductions in income or added dependents
  • may have their rates reduced under certain circumstances, such as when a dependent is lost, and
  • do not receive increased benefits if found eligible for housebound or aid and attendance (A&A).  They must elect current-law pension if they wish to receive increased pension based on housebound or A&A eligibility.

V.i.1.3.c.  Effect of Income Limits on the Payment of Benefits

Use the table below to determine the impact of a beneficiary’s income on the payment of pension.
If a Section 306 or Old-Law Pension beneficiary’s income …
Then …
exceeds the income limit for any year
  • the protected rate is lost, and
  • future pension eligibility must be established under the current-law pension program.
exceeds the income limit for any year solely because of cost-of-living increases in benefits, such as Social Security
the protected pensioner does not lose entitlement.
Note:  Although Section 306 and Old-Law Pension beneficiaries do not receive cost-of-living increases, the income limit for Section 306 and Old-Law eligibility is increased each year by the cost-of-living factor.
Reference:  For information on the cost-of-living factor, see the proected pension rate tables.
does not exceed the income limitations
pension is paid at the protected rate.

V.i.1.3.d.  Cases in Which a Beneficiary Wants a Higher Rate of Pension

If a Section 306 or Old-Law Pension beneficiary wants to receive a higher rate of pension, the beneficiary must elect current-law pension.
A beneficiary may be better off continuing to receive the protected Section 306 Pension rate if he/she receives a type of income, such as a spouse’s wages, that is
  • countable for current-law pension purposes, but
  • not countable for Section 306 Pension purposes.
Reference:  For more information on elections between pension programs, seeM21-1, Part V, Subpart iii, 5.

4.  Entitlement Requirements and Development for Parents’ DIC


Introduction

This topic contains information on entitlement requirements and development for Parents’ DIC, including

Change Date

January 2, 2018

V.i.1.4.a.  Definition:  Parents’ DIC

Parents’ Dependency and Indemnity Compensation (DIC) is a monthly payment to a parent or parents of a Veteran, based on a Veteran’s SC death that occurred after December 31, 1956.

V.i.1.4.b.  Notifying the Parent(s) of the Right to Claim Parents’ DIC

At the time a Veteran’s death is determined to be SC

V.i.1.4.c.  Establishing the Entitlement of a Parent to Parents’ DIC

For Parents’ DIC purposes, only one father and mother may be established, per 38 CFR 3.59(b).  In order to establish basic entitlement, a parent must
  • establish his/her relationship to the Veteran, and
  • meet the income limitation set by law.
Notes:
  • Factors such as abandonment by a parent, court judgments, and length of relationship before the Veteran entered service may affect the claim.
  • If a claim does not meet one or more of the eligibility requirements, deny the claim.  Do not develop or rate the claim.
References:  For more information on

V.i.1.4.d.  Acceptable Proof of Relationship of a Parent to a Veteran

Use the table below for information on acceptable proof of relationship of a
  • natural parent
  • adoptive parent, or
  • foster parent.
If the parent is a …
Then he/she must establish relationship to the Veteran by providing …
natural parent
a copy of the Veteran’s birth certificate showing the name of the natural parent.
adoptive parent
a copy of the
  • final decree of adoption, and
  • revised birth certificate.
foster parent
The foster parent relationship must have
  • begun prior to the Veteran’s 21st birthday, and
  • lasted at least one continuous year.
Reference:  For information on different types of parental relationships, see M21-1, Part III, Subpart iii, 5.I.1.

V.i.1.4.e.  Effect of the Marital Status of the Parent on the Parents’ DIC Rate

The marital status of the parent affects the monthly Parents’ DIC rate.  After basic eligibility is established based on relationship, determine whether the parent is
  • married to
    • the other parent, or
    • another person
  • unmarried
  • separated, or
  • divorced.
If the parent is married and living with a spouse, the spouse’s income is used to determine the DIC rate, regardless of whether the spouse is the other parent or another person.

V.i.1.4.f.  When Both Parents Are Living and Only One Parent Has Filed a Parents’ DIC Claim

If there are two parents living, but only one has filed a Parents’ DIC claim, the mere existence of the other parent affects the rate payable to the claimant, per 38 CFR 3.251(a)(5).  The other parent’s potential eligibility continues until death or receipt of evidence of a legal bar to entitlement, other than excessive income.
Award DIC to the claiming parent at the rate payable to only one surviving parent, when it is determined that the nonclaiming parent no longer has eligibility to DIC because of
  • abandonment of the Veteran, or
  • the existence of another person, now deceased, who was last in locoparentis.
Definition in loco parentis:  A person standing in loco parentis serves in place of the parent and has a parent’s rights, duties and responsibilities.
Reference:  For information on abandonment by the parent of a Veteran, see M21-1, Part III, Subpart iii, 5.I.8.
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