Establishing eligibility for VA benefits is critical to ensure incarcerated Veterans are rehabilitated. Veterans that have a regular source of income once they are released are much less likely to re-offend. For Veterans with a criminal conviction, it is very important to maximize their receipt of VA benefits to improve quality of life. Even though a Veteran is incarcerated, they may still be entitled to some VA benefits.
Generally, VA Claimants are not entitled to receive most of their VA compensation benefits while they are incarcerated long-term. However, incarcerated Veterans and family members of Veterans may still apply for VA benefits while incarcerated. Once the period of incarceration ends, the claimant can have their benefits restored.
Reduction of VA Benefits for Incarcerated Veterans and VA Claimants
VA claimants can expect for their monthly benefit payments to be reduced once they have been incarcerated for a felony in excess of 60 days. This does not apply to Veterans charged with misdemeanors. Incarceration must occur in a federal, state, or local “penal institution.” Veterans confined in mental health facilities, “halfway houses,” or other forms of community control are not subject to this reduction. Veterans incarcerated in foreign prisons (outside of U.S. jurisdiction) are not subject to reduction of VA benefits. Incarcerated veterans are subject to reduced benefits payments even if they are still appealing the conviction.
Any VA benefits received by an incarcerated VA claimant are significantly reduced during periods of incarceration. For Veterans receiving service-connected compensation at the 10% rate, monthly payments will be cut in half during periods of incarceration. Veterans rated at 20% or more will be reduced to the 10% rate during their period of incarceration. Once the Veteran is released from prison, compensation payments are typically restored.
To avoid an overpayment of benefits, incarcerated Veterans are encouraged to proactively disclose their incarceration to VA. If VA discovers a Veteran received full benefits during a period of incarceration, VA will seek to recover the overpayment. This usually happens when the Veteran has been released, and can cause significant problems with the Veteran’s rehabilitation plan.
Apportionment of VA Benefits for Family Members of Incarcerated Veterans and VA Claimants
In cases where the Veteran demonstrates a need, VA may “apportion” the incarcerated Veteran’s benefits to the Veteran’s spouse, children, or dependent parents. When determining whether the incarcerated Veteran’s benefits can be apportioned, VA will consider factors such as:
- The claimant’s other sources of income
- The claimant’s living expenses
- The needs and living expenses of other claimants and dependents
- The amount of compensation available to be apportioned
- Any special needs of the claimants
VA is required to inform incarcerated Veterans of their right to have benefits apportioned while incarcerated. Moreover, VA must inform the Veteran how to have benefits restored upon release.
Veteran Esquire Legal Solutions Helps Incarcerated Veterans Obtain Benefits
It can be difficult for incarcerated Veterans to begin the process of applying for VA benefits. Obtaining expert medical opinions can be difficult, considering many facilities do not allow inmates to attend C&P Examinations. Regardless, it is important to file applications for VA compensation as soon as possible, especially if you are suffering from mental health conditions, such as PTSD. Moreover, you can begin the process of filing for a military discharge upgrade while incarcerated. The process of applying for VA benefits for incarcerated Veterans with other-than-honorable discharges can be lengthy, especially if VA must make a character of service determination.
Applying for VA benefits is a productive and beneficial use of time for incarcerated Veterans. Veterans need not wait until they are released to begin the application process. Although incarcerated Veterans will only receive the reduced rate while incarcerated, it can be much quicker to start receiving benefits if you apply while serving time. There is no benefit for the Veteran to wait for release. Moreover, you can pay your attorney fees using the benefits that are withheld – meaning you can hire a Veterans Benefits attorney without paying out of pocket in most cases.
If you are a Veteran that is incarcerated and need assistance with obtaining VA benefits, Veteran Esquire Legal Solutions, PLLC, fights to ensure no Veteran is left behind by the system. We offer free consultations to all Veterans seeking VA benefits. Call 1-800-679-0791, or click here, to schedule a free consultation with a Veterans disability attorney.