What Happens to a Pending VA Claim When a Veteran is Incarcerated?

Question: I applied for VA pension or disability before I was incarcerated. What will happen to my pending claim?

Answer: Your pending claim will continue to be processed. See below for more information about your rights and responsibilities.

• Be sure to notify the VA in writing of your current address whether it is a jail/prison address or a permanent home address where someone can forward your mail to you.
• If you need a Compensation and Pension (C&P) exam to evaluate your disability claim, the VA must provide an exam to you in jail/prison under VA’s Duty to Assist and Bolton v. Brown, 8 Vet. App. 185 (1995). It is important to notify VA that you are incarcerated so VA can arrange for a VA doctor to visit the jail/prison for your C&P exam, if necessary.
• If your claim is granted while you are incarcerated, you will only be entitled to your full benefits up until 61 days after your conviction. If you are still incarcerated 61 days post-conviction, VA will withhold your benefits until your release (see below for more details).
• If you are convicted of a misdemeanor and sentenced to more than 60 days in jail, you will lose your VA pension benefits on the 61st day of incarceration.
• If you are convicted of a felony and sentenced to more than 60 days in jail, you will lose your VA pension or up to 90 percent of your VA disability benefits on the 61st day of incarceration.
• It is important to remember that you will only lose benefits if you are incarcerated post-conviction. If you are in Veterans Court, substance abuse/mental health treatment, probation, or other diversion programs you will NOT lose your benefits.
• If you are in danger of losing your VA benefits due to post-conviction incarceration, you can assign your pension or disability benefits to a spouse or child during incarceration (this is called apportionment). Send a letter to the VA requesting apportionment of benefits and demonstrating your dependents’ financial need (address below).
• If you do not want to apportion your benefits, you still must notify the VA of your conviction to avoid an overpayment. If VA continues to pay your benefits after the 61st day of post-conviction incarceration, you will have to repay the overpayment.

Restarting Benefits After Your Release: Send a copy of your official release papers to the VA Regional Office within one year of your release. In your letter, be sure to include your social security number, name, and current address and ask VA to reinstate your benefits.

Bolton v. Brown
Department of Veterans Affairs
Claims Intake Center
PO Box 5235
Janesville, WI 53547-5235
*Send all letters via certified mail and keep copies for your records