Veteran Denied Benefits Because He Did Not Fight On Any War

[emelita]

Since 2003, I have been claiming for my husband death pension as a US Veteran but always get denied. Last year I applied again as the person working at the Department of Veterans Affairs in Everett WA. told me that I am qualified to get a death pension. So he help me go through again those applications but again, I was denied, and now my case is going to DBA for a new hearing because I applied for this De NOVO Review as I gave a notice of disagreement.

My husband was in the army for more than two years but did not fight on the war in Vietnam, the actual war in the Republic of Vietnam, but he told me that he is the one making all the ammunition for the war in Vietnam. At that point of his service he did not go to war but the war is going on and the war have not been proclaimed yet, so his time of service did not fall on any days when they proclaimed the war in Vietnam and he did not go to war in the Republic of Vietnam as what the DVA govern. So he is not entitled to any death pension because he did not fight on any war even for one day, as the DVA said.

So now if the person is in the army and did not fight in the war he is not entitled to any death pension???

If your in the army you should fight in the war even for one day... or else no pension if you die or no other benefits to your dependents.

[Philip Rogers]

I think Berta is correct. Since he didn't serve in-country, the 1964 date applies and he was discharged by then.

pr

[Pete53]

I agree with John as it would mean a little more money. Even though your husband served during peacetime you would still qualify for a partial pension from VA which would be an increase or more money.You need to really study your options though as you get to about 1000 a month you get close to losing some of other benefits including food stamps and Medicaid. I don't know what State you are in but they all have their own cutoffs.

Your husband served 2 years and earned those benefits and I am afraid that who ever told you that you could not get benefits cause he served in Peacetime does not know what they are talking about. However, it is true that the benefits for Peacetime are more limited.

If you have access to a social worker maybe they could help you with your claim.

Good Luck

[Wings]

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38 CFR Sec. 3.2 Periods of war. (f) Vietnam era. The period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period. The period beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases. (Authority: 38 U.S.C. 101(29))

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38 CFR Sec. 3.3 Pension.

(2) Section 306 pension. A benefit payable monthly by the Department of Veterans Affairs because of nonservice-connected disability or age. Basic entitlement exists if a veteran:

(i) Served 90 days or more in either the Mexican border period, World War I, World War II, the Korean conflict, or the Vietnam era, or served an aggregate of 90 days or more in separate periods of service during the same or during different war periods, including service during the Spanish-American War (Pub. L. 87–101, 75 Stat. 218; Pub. L. 90–77, 81 Stat. 178; Pub. L. 92–198, 85 Stat. 663); or

(ii) Served continuously for a period of 90 consecutive days or more and such period ended during the Mexican border period or World War I, or began or ended during World War II, the Korean conflict or the Vietnam era (Pub. L. 87–101, 75 Stat. 218; Pub. L. 88–664, 78 Stat. 1094; Pub. L. 90–77, 81 Stat. 178; Pub. L. 91–588, 84 Stat. 1580; Pub. L. 92–198, 85 Stat. 663; Pub. L. 94–169, 89 Stat. 1013; Pub. L. 95–204, 91 Stat. 1455); or

(iii) Was discharged or released from such wartime service, before having served 90 days, for a disability adjudged service connected without the benefit of presumptive provisions of law, or at the time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability; and

(iv) Is permanently and totally disabled ( a ) from nonservice-connected disability not due to the veteran's own willful misconduct or vicious habits, or ( b ) by reason of having attained the age of 65 years or by reason of having become unemployable after age 65; and

(v)( a ) Is in receipt of section 306 pension or ( b ) has an application for pension pending on December 31, 1978, or ( c ) meets the age or disability requirements for such pension on December 31, 1978, and files a claim within 1 year of that date and also within 1 year after meeting the age or disability requirements.

(vi) Meets the income and net worth requirements of 38 U.S.C. 1521 and 1522 as in effect on December 31, 1978, and all other provisions of title 38, United States Code, in effect on December 31, 1978, applicable to section 306 pension.

Note: The pension provisions of title 38 U.S.C., as in effect on December 31, 1978, are available in any VA regional office.

(3) Improved pension; Pub. L. 95–588 (92 Stat. 2497). A benefit payable by the Department of Veterans Affairs to veterans of a period or periods of war because of nonservice-connected disability or age. The qualifying periods of war for this benefit are the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era and the Persian Gulf War. Payments are made monthly unless the amount of the annual benefit is less than 4 percent of the maximum annual rate payable to a veteran under 38 U.S.C. 1521(b), in which case payments may be made less frequently than monthly. Basic entitlement exists if a veteran:

(i) Served in the active military, naval or air service for 90 days or more during a period of war (38 U.S.C. 1521(j)); or

(ii) Served in the active military, naval or air service during a period of war and was discharged or released from such service for a disability adjudged service-connected without presumptive provisions of law, or at time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability (38 U.S.C. 1521(j)); or

(iii) Served in the active military, naval or air service for a period of 90 consecutive days or more and such period began or ended during a period of war (38 U.S.C. 1521(j)); or

(iv) Served in the active military, naval or air service for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war (38 U.S.C. 1521(j)); and

(v) Meets the net worth requirements under §3.274 and does not have an annual income in excess of the applicable maximum annual pension rate specified in §3.23; and

(vi)(A) Is age 65 or older; or

(B) Is permanently and totally disabled from nonservice-connected disability not due to the veteran's own willfull misconduct. For purposes of this paragraph, a veteran is considered permanently and totally disabled if the veteran is any of the following:

( 1 ) A patient in a nursing home for long-term care because of disability; or

( 2 ) Disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner; or

( 3 ) Unemployable as a result of disability reasonably certain to continue throughout the life of the person; or

( 4 ) Suffering from:

( i ) Any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person; or

( ii ) Any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled.

(Authority: 38 U.S.C. 1502(a), 1513, 1521, 1522)

(b) Pension for survivors —(1) Indian war death pension. A monthly benefit payable by the Department of Veterans Affairs to the surviving spouse or child of a deceased veteran of an Indian war. Basic entitlement exists if a veteran had qualifying service as specified in 38 U.S.C. 1511. Indian war death pension rates are set forth in 38 U.S.C. 1534 and 1535.

(2) Spanish-American War death pension. A monthly benefit payable by the Department of Veterans Affairs to the surviving spouse or child of a deceased veteran of the Spanish-American War, if the veteran:

(i) Had 90 days or more active service during the Spanish-American War; or

(ii) Was discharged or released from such service for a disability service-connected without benefit of presumptive provisions of law, or at time of discharge had such a service-connected disability, as shown by official service records, which in medical judgment would have justified a discharge for disability.

(Authority: 38 U.S.C. 1536, 1537)

(3) Section 306 death pension. A monthly benefit payable by the Department of Veterans Affairs to a surviving spouse or child because of a veteran's nonservice-connected death.

Basic entitlement exists if:

(i) The veteran (as defined in §3.1(d) and (d)(2)) had qualifying service as specified in paragraph (a)(2)(i), (ii), or (iii) of this section; or

(ii) The veteran was, at time of death, receiving or entitled to receive compensation or retired pay for service-connected disability based on wartime service; and

(iii) The surviving spouse or child (A) was in receipt of section 306 pension on December 31, 1978, or (B) had a claim for pension pending on that date, or © filed a claim for pension after that date but within 1 year after the veteran's death, if the veteran died before January 1, 1979; and

(iv) The surviving spouse or child meets the income and net worth requirements of 38 U.S.C. 1541, 1542 or 1543 as in effect on December 31, 1978, and all other provisions of title 38, United States Code in effect on December 31, 1978, applicable to section 306 pension.

Note: The pension provisions of title 38, United States Code, as in effect on December 31, 1978, are available in any VA regional office.)

(4) Improved death pension, Public Law 95–588. A benefit payable by the Department of Veterans Affairs to a veteran's surviving spouse or child because of the veteran's nonservice-connected death. Payments are made monthly unless the amount of the annual benefit is less than 4 percent of the maximum annual rate payable to a veteran under 38 U.S.C. 1521(b), in which case payments may be made less frequently than monthly. Basic entitlement exists if:

(i) The veteran (as defined in §3.1(d) and (d)(2)) had qualifying service as specified in paragraph (a)(3)(i), (ii), (iii), or (iv) of this section (38 U.S.C. 1541(a)); or

(ii) The veteran was, at time of death, receiving or entitled to receive compensation or retired pay for a service-connected disability based on service during a period of war. (The qualifying periods of war are specified in paragraph (a)(3) of this section.) (38 U.S.C. 1541(a)); and

(iii) The surviving spouse or child meets the net worth requirements of §3.274 and has an annual income not in excess of the applicable maximum annual pension rate specified in §§3.23 and 3.24.

(Authority: 38 U.S.C. 1541 and 1542)

Cross References: Section 306 pension. See §3.1(u). Improved pension. See §3.1(w). Improved pension rates. See §3.23. Improved pension rates; surviving children. See §3.24. Frequency of payment of improved pension. See §3.30. Relationship of net worth to pension entitlement. See §3.274.

[44 FR 45931, Aug. 6, 1979, as amended at 56 FR 19579, Apr. 29, 1991; 56 FR 22910, May 17, 1991; 56 FR 25044, June 3, 1991; 56 FR 57986, Nov. 15, 1991; 68 FR 34541, June 10, 2003]

[Ricky]

Vietnam era. The period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period.

Berta was correct, one had to serve in the Republic of VN in order for the 61-75 dates to apply.

[emelita]

Everything is so helpful here and I think I will not pursue this anymore if I will loose all my benefits like medical and food stamp which is not so big but if the veterans is only giving little on what I am receiving right now then I better not get into this hearing anymore.

On all the the section for the eligibility, my late husband pass all the eligibility but only the one that says about fighting one day on a war inside the Republic of Vietnam which the DVA is the one denying.

The one I am questioning from the DVA is, " what happen to those person inside the army who did not go to war and stay here in USA? are they not eligible to get any death benefits because they did not fight in the war inside Vietnam???

DO I have a point here?

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Vietnam era. The period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period.

Berta was correct, one had to serve in the Republic of VN in order for the 61-75 dates to apply.

[Philip Rogers]

Emelita, I think you are misunderstanding and if not I apologize, for my error. They could have been stationed stateside during a war period and they still get the wartime benefits. They don't need to have been in Vietnam or in battle or any other country, they just need to have served "one day" during the wartime period. Your husband missed that period. For some reason the VA made two different periods for the VN war. One for in-country vets and one those who served elsewhere. That death pension is an expanded benefit and is only for wartime veterans/widows only. Veterans serving during peacetime aren't eligible. I hope I explained that correctly.

pr