Establishing Eligibility

The law currently sets three threshold conditions to be eligible for VA benefits:

  1.  veteran status,
  2.  character of discharge, and
  3.  a medical condition that is not the result of willful misconduct or substance abuse.

Veteran Status

Are you a Veteran?

Many eligible individuals are unaware that they are “veterans” for VA benefits purposes. Contrary to some beliefs, it is not necessary that a service member have been in combat or have retired from the military to be eligible for VA benefits. Although there are usually some minimal period of service requirements, the vast majority of individuals with active duty service (including certain training and certain “call ups” of Reserve or Guard) are “veterans” for VA purposes.

Veteran status is defined as:

  1. a claimant must be “a person who served in the active military services”, and
  2. who was discharged or released “under conditions other than dishonorable.

Although the term “veteran” appears straightforward, there are specific legal requirements for someone to be considered a “veteran” for purposes of eligibility for VA benefits.  “In order to qualify for VA benefits, a claimant . . . [must be] a ‘veteran.'”  Cropper v. Brown, 6 Vet. App. 450, 452 (1994); D’Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000).  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 dishonorable.”  38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d).  Service in the active military, naval, or air service includes service in the United States Armed Forces or, for certain purposes, service in the organized military forces or organized guerilla forces of the Government of the Commonwealth of the Philippines in the service of the United States Armed Forces.  38 U.S.C. §§ 101(10), 101(21)(C), 101(24), 107; 38 C.F.R. § 3.40(b).

To establish entitlement to benefits, VA may accept documents submitted by a claimant as evidence of qualifying service, without verification from the appropriate service department, if the documents were issued by a U.S. service department, contain the needed information, and in VA’s opinion are genuine and contain accurate information. 38 C.F.R. § 3.203(a); Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  If, however, the evidence of service submitted does not meet the requirements of section 3.203(a), VA must request verification of service from the appropriate U.S. service department.  38 C.F.R. § 3.203(c); Soria, 118 F.3d at 749; Capellan v. Peake, 539 F.3d 1373, 1380 (Fed. Cir. 2008) (noting that section 3.203(c) requires verification from the service department whenever a claimant lacks the kind of official evidence specified in section 3.203(a)).

Under section 3.203, service department findings are binding on VA for purposes of establishing qualifying service.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992) (“[t]herefore, VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces.”).  “Thus, if the United States service department refuses to verify the applicant’s claimed service, the applicant’s only recourse lies within the relevant service department, not the VA.” Soria, 118 F.3d at 749.  The Board’s determination of “veteran status” is a question of fact that the Court reviews under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4).  Struck v. Brown, 9 Vet. App. 145, 152-53 (1996).

Pursuant to the American Recovery and Reinvestment Act of 2009, Congress established the Filipino Veterans Equity Compensation Fund (“FVECF”) and authorized VA to make one-time payments from the fund to eligible persons who submitted a claim within the one-year period beginning on the date of enactment.  Pub. L. No. 111- 5, § 1002, 123 Stat. 115.  The act defined the term “eligible person” as any person who served before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, including the recognized guerilla forces, or in the Philippine Scouts.  Id.  But, “Philippine veterans are not eligible for veterans’ benefits unless a United States service department documents or certifies their service.”  Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); 38 C.F.R. § 3.9.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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