Veterans can sometimes run into issues with law enforcement and the criminal justice system resulting in incarceration. It is important justice-involved Veterans are familiar with VA benefits including what VA benefits they may still eligible to receive and what happens to the VA benefits they are already receiving if they become incarcerated.
As of August 2022, Justice Department data estimated that 181,500 Veterans, or about 8% of all U.S. inmates, were incarcerated in local, state, or federal facilities. This is roughly one in three Veterans, who are arrested at least once in their lifetime.
Veterans who have committed one or more felonies for which they are imprisoned for more than sixty (60) days are entitled to compensation for their service-connected disability(ies), but at a reduced rate. Incarcerated Veterans with a twenty (20) percent disability rating or greater will receive monthly payments at a ten (10) percent disability rate. If a Veteran has only a ten (10) percent disability rating, then his/her monthly payments will cut in half of the (ten) percent rate.
Importantly, reductions to monthly payments only apply to fully incarcerated veterans.
Payments are not reduced for Veterans engaged in work release programs, residing in halfway houses (also known as "residential re-entry centers"), or under community control. Moreover, once a Veteran is released from prison, the reduction is lifted, and compensation payments should return to the normal compensation rate.
The reduced or unpaid portion of the Veteran’s compensation may be apportioned to the Veteran’s spouse, children or other dependent based upon need. Need is determined by considering the spouse’s, children’s or other dependent’s living needs (standard and special) and expenses. However, to obtain any apportionment of the Veteran’s benefits, the spouse, children or other dependent must apply for the apportionment benefit. It is not automatically given.
The Rights of a Veteran as a VA Claimant
For purposes of the development and adjudication of claims, incarcerated Veterans must be treated like any other claimant. For example, the VA’s duty-to-assist applies equally to incarcerated Veterans, and therefore, the VA must make whatever arrangements are necessary to ensure an accurate and complete VA medical examination. This means that the VA must have a physician/psychologist attend the jail facility for an in-person examination, or, when appropriate, arrange an audio/visual conference for the examination. Either way, VA staff are under an obligation to ensure the logistics of the examination. In a word, the VA is required to "tailor [its] . . . assistance to the peculiar circumstances of confinement.” Wood v. Derwinski, 1 Vet.App. 190, 193 (1991).
In addition, the regulations guarantee that "[e]very claimant has the right to a [Board] hearing." 38 C.F.R. § 3.303. For an incarcerated Veteran, the VA staff must arrange with the jail facility to have audio/visual technology available to allow the Veteran to participate in their scheduled hearing.
