38 C.F.R. § 3.3

Pension

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(a) Pension for veterans—(1) Service pension; Spanish-American War. A benefit payable monthly by the Department of Veterans Affairs because of service in the Spanish-American War. Basic entitlement exists if a veteran:

(i) Had 70 (or 90) days or more active service during the Spanish-American War; or

(ii) Was discharged or released from such service for a disability adjudged service connected without 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.

(Authority: 38 U.S.C. 1512)

(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, air, or space 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, air, or space 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, air, or space 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 air, or space 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 warsurvivors 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 survivors pension rates are set forth in 38 U.S.C. 1534 and 1535.

(2) Spanish-American War survivors 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 survivors 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 (C) 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 survivors 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; 87 FR 26125, May 3, 2022]

Notes of Decisions

Cited in 61 cases (10 in the last 5 years), 1966–2026 · leading case: Merritt I. Anderson v. Anthony J. Principi, 18 Vet. App. 371 (Vet. App. 2004).

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Merritt I. Anderson v. Anthony J. Principi, 18 Vet. App. 371 (Vet. App. 2004). · cites it 2× “§ 1521 ; 38 C.F.R. § 3.3 (a)(3) (2003). The 3 "Vietnam era" is statutorily defined as follows: (A) The period beginning on February 28, 1961, and ending on May 7, 1975, in the case of a veteran who served in the Republic of Vietnam during that period.”

Martin v. Brown, 7 Vet. App. 196 (Vet. App. 1994). · cites it 2× “§ 1541 (a); 38 C.F.R. § 3.3 (b)(4). Death-pension benefits are governed by income limitations which require that, when there is no child of the veteran in the custody of the surviving spouse, the annual rate of pension be reduced by the amount of the annual income of the…”

Preston Lee Dent v. Robert A. McDonald, 27 Vet. App. 362 (Vet. App. 2015). · cites it 2× “§ 1521 (b); 38 C.F.R. §§ 3.3 (2015), 3.23(a) (providing that increases in the rates "will be published in the 'Notices' section of the Federal Register"), 3.”

Johnson v. Brown, 9 Vet. App. 369 (Vet. App. 1996). “§§ 1541 (e), 5312(a); 38 C.F.R. §§ 3.3 (b)(4)(iii), 3.23(a), (b), (d)(5) (1995); 60 Fed.”

Zang v. Brown, 8 Vet. App. 246 (Vet. App. 1995). “301 (b) (1994) (“[disability pension is not payable for any condition due to the veteran’s own willful misconduct”); see also 38 C.F.R. § 3.3 (a)(3) (1994); Roberts v.”

Grantham v. Brown, 8 Vet. App. 228 (Vet. App. 1995). “§ 1521 , a veteran must (1) have served during a period of war for a requisite period of time; (2) be permanently and totally disabled; and (3) have income that meets a certain income standard.”

Pete T. Talon, Claimant-Appellant v. Jesse Brown, Sec'y of Vets. Affairs, 999 F.2d 514 (Fed. Cir. 1993). “See 38 C.F.R. § 3.3 (a)(2)(iv)(b) (1989). On September 18,1989, the Department of Veterans Affairs denied Mr.”

Shields v. Brown, 8 Vet. App. 346 (Vet. App. 1995). “§ 1541 (a), (g), 1543(a)(1); 38 C.F.R. §§ 3.3 (b)(4), 3.23 (1994) Martin v.”

Antonio Pacheco v. Eric K. Shinseki, 26 Vet. App. 413 (Vet. App. 2014). · cites it 2× “See 38 C.F.R. § 3.3 (a)(3)(vi) (2013). For example, a veteran age 65 or older does not need to identify a specific disability when applying for pension because 38 U.”

Fischer v. West, 11 Vet. App. 121 (Vet. App. 1998). “See also 38 C.F.R. § 3.3 (a)(3) (1997); Odiorne v.”

Perley v. Palmer, 157 F.R.D. 452 (N.D. Iowa 1994). · cites it 2× “As mentioned, plaintiffs seek to certify as a class all elderly veterans or spouses of veterans in Iowa who may in the future be denied Title XIX benefits as a result of the DHS’s policy of counting VA improved pensions (awarded pursuant to 38 C.F.R. § 3.3 for unreimbursed…”

Robert A. Hartness v. R. James Nicholson, 20 Vet. App. 216 (Vet. App. 2006). · cites it 3× “The RO also noted that his pension would be terminated in February 2004 because his annual income exceeded the maximum amount allowed under 38 C.F.R. § 3.3 (a)(3)(v) (2003). R. at 133.”

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