38 U.S.C. § 1980A — Traumatic injury protection

Page 551 TITLE 38—VETERANS’ BENEFITS § 1980A (2) the procedures under which any such ap- plication shall be considered. (f)(1) An election to receive a benefit under this section shall be irrevocable. (2) A person may not make more than one election under this section, even if the election of the person is to receive less than the max- imum amount of the benefit available to the person under this section. (g) If a person insured under Servicemembers’ Group Life Insurance elects to receive a benefit under this section and the person’s Servicemembers’ Group Life Insurance is there- after converted to Veterans’ Group Life Insur- ance as provided in section 1968(b) of this title, the amount of the benefit paid under this sec- tion shall reduce the amount of Veterans’ Group Life Insurance available to the person under sec- tion 1977(a) of this title. (h) Notwithstanding any other provision of law, the amount of the accelerated death benefit received by a person under this section shall not be considered income or resources for purposes of determining eligibility for or the amount of benefits under any Federal or federally-assisted program or for any other purpose. (Added Pub. L. 105–368, title III, § 302(a)(1), Nov. 11, 1998, 112 Stat. 3332; amended Pub. L. 111–275, title IV, § 405(a), Oct. 13, 2010, 124 Stat. 2880.) Editorial Notes AMENDMENTS 2010—Subsec. (b)(1). Pub. L. 111–275 struck out ‘‘re- duced by an amount necessary to assure that there is no increase in the actuarial value of the benefit paid, as determined by the Secretary’’ after ‘‘death benefit’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2010 AMENDMENT Pub. L. 111–275, title IV, § 405(b), Oct. 13, 2010, 124 Stat. 2880, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply with re- spect to a payment of an accelerated death benefit under section 1980 of title 38, United States Code, made on or after the date of the enactment of this Act [Oct. 13, 2010].’’ EFFECTIVE DATE Section effective 90 days after Nov. 11, 1998, see sec- tion 302(c) of Pub. L. 105–368, set out as an Effective Date of 1998 Amendment note under section 1970 of this title. § 1980A. Traumatic injury protection (a)(1) A member of the uniformed services who is insured under Servicemembers’ Group Life In- surance shall automatically be insured for trau- matic injury in accordance with this section. In- surance benefits under this section shall be pay- able if the member, while so insured, sustains a traumatic injury on or after December 1, 2005, that results in a qualifying loss specified pursu- ant to subsection (b)(1). (2) If a member suffers more than one such qualifying loss as a result of traumatic injury from the same traumatic event, payment shall be made under this section in accordance with the schedule prescribed pursuant to subsection (d) for the single loss providing the highest pay- ment. (b)(1) A member who is insured against trau- matic injury under this section is insured against such losses due to traumatic injury (in this section referred to as ‘‘qualifying losses’’) as are prescribed by the Secretary by regula- tion. Qualifying losses so prescribed shall in- clude the following: (A) Total and permanent loss of sight. (B) Loss of a hand or foot by severance at or above the wrist or ankle. (C) Total and permanent loss of speech. (D) Total and permanent loss of hearing in both ears. (E) Loss of thumb and index finger of the same hand by severance at or above the metacarpophalangeal joints. (F) Quadriplegia, paraplegia, or hemiplegia. (G) Burns greater than second degree, cov- ering 30 percent of the body or 30 percent of the face. (H) Coma or the inability to carry out the activities of daily living resulting from trau- matic injury to the brain. (2) For purposes of this subsection: (A) The term ‘‘quadriplegia’’ means the com- plete and irreversible paralysis of all four limbs. (B) The term ‘‘paraplegia’’ means the com- plete and irreversible paralysis of both lower limbs. (C) The term ‘‘hemiplegia’’ means the com- plete and irreversible paralysis of the upper and lower limbs on one side of the body. (D) The term ‘‘inability to carry out the ac- tivities of daily living’’ means the inability to independently perform two or more of the fol- lowing six functions: (i) Bathing. (ii) Continence. (iii) Dressing. (iv) Eating. (v) Toileting. (vi) Transferring. (3) The Secretary may prescribe, by regula- tion, conditions under which coverage otherwise provided under this section is excluded. (4) A member shall not be considered for the purposes of this section to be a member insured under Servicemembers’ Group Life Insurance if the member is insured under Servicemembers’ Group Life Insurance only as an insurable de- pendent of another member pursuant to sub- paragraph (A)(ii) or (C)(ii) of section 1967(a)(1) of this title. (c)(1) A payment may be made to a member under this section only for a qualifying loss that results directly from a traumatic injury sus- tained while the member is covered against loss under this section and from no other cause. (2)(A) A payment may be made to a member under this section for a qualifying loss resulting from a traumatic injury only for a loss that is incurred during the applicable period of time specified pursuant to subparagraph (B). (B) For each qualifying loss, the Secretary shall prescribe, by regulation, a period of time to be the period of time within which a loss of that type must be incurred, determined from the date on which the member sustains the trau- matic injury resulting in that loss, in order for that loss to be covered under this section. Page 552 TITLE 38—VETERANS’ BENEFITS § 1980A (d)(1) Payments under this section for quali- fying losses shall be made in accordance with a schedule prescribed by the Secretary, by regula- tion, specifying the amount of payment to be made for each type of qualifying loss, to be based on the severity of the qualifying loss. The minimum payment that may be prescribed for a qualifying loss is $25,000, and the maximum pay- ment that may be prescribed for a qualifying loss is $100,000. (2) As the Secretary considers appropriate, the schedule required by paragraph (1) may distin- guish in specifying payments for qualifying losses between the severity of a qualifying loss of a dominant hand and of a qualifying loss of a nondominant hand. (e)(1) During any period in which a member is insured under this section and the member is on active duty, there shall be deducted each month from the member’s basic or other pay until sepa- ration or release from active duty an amount determined by the Secretary (which shall be the same for all such members) as the share of the cost attributable to provided coverage under this section, less any costs traceable to the extra hazards of such duty in the uniformed services. (2) During any month in which a member is as- signed to the Ready Reserve of a uniformed service under conditions which meet the quali- fications set forth in section 1965(5)(B) of this title and is insured under a policy of insurance purchased by the Secretary under section 1966 of this title, there shall be contributed from the appropriation made for active duty pay of the uniformed service concerned an amount deter- mined by the Secretary (which shall be the same for all such members) as the share of the cost attributable to provided coverage under this sec- tion, less any costs traceable to the extra haz- ards of such duty in the uniformed services. Any amounts so contributed on behalf of any mem- ber shall be collected by the Secretary con- cerned from such member (by deduction from pay or otherwise) and shall be credited to the appropriation from which such contribution was made in advance on a monthly basis. (3) The Secretary shall determine the pre- mium amounts to be charged for traumatic in- jury protection coverage provided under this section. (4) The premium amounts shall be determined on the basis of sound actuarial principles and shall include an amount necessary to cover the administrative costs to the insurer or insurers providing such insurance. (5) Each premium rate for the first policy year shall be continued for subsequent policy years, except that the rate may be adjusted for any such subsequent policy year on the basis of the experience under the policy, as determined by the Secretary in advance of that policy year. (6) The cost attributable to insuring members under this section for any month or other period specified by the Secretary, less the premiums paid by the members, shall be paid by the Sec- retary concerned to the Secretary. The Sec- retary shall allocate the amount payable among the uniformed services using such methods and data as the Secretary determines to be reason- able and practicable. Payments under this para- graph shall be made on a monthly basis or at such other intervals as may be specified by the Secretary and shall be made within 10 days of the date on which the Secretary provides notice to the Secretary concerned of the amount re- quired. (7) For each period for which a payment by a Secretary concerned is required under paragraph (6), the Secretary concerned shall contribute such amount from appropriations available for active duty pay of the uniformed service con- cerned. (8) The sums withheld from the basic or other pay of members, or collected from them by the Secretary concerned, under this subsection, and the sums contributed from appropriations under this subsection, together with the income de- rived from any dividends or premium rate ad- justments received from insurers shall be depos- ited to the credit of the revolving fund estab- lished in the Treasury of the United States under section 1869(d)(1) of this title. (f) When a claim for benefits is submitted under this section, the Secretary of Defense or, in the case of a member not under the jurisdic- tion of the Secretary of Defense, the Secretary concerned, shall certify to the Secretary wheth- er the member with respect to whom the claim is submitted— (1) was at the time of the injury giving rise to the claim insured under Servicemembers’ Group Life Insurance for the purposes of this section; and (2) has sustained a qualifying loss. (g)(1) Payment for a loss resulting from trau- matic injury may not be made under the insur- ance coverage under this section if the member dies before the end of a period prescribed by the Secretary, by regulation, for such purpose that begins on the date on which the member sus- tains the injury. (2) If a member eligible for a payment under this section dies before payment to the member can be made, the payment shall be made to the beneficiary or beneficiaries to whom the pay- ment would be made if the payment were life in- surance under section 1967(a) of this title. (h) Coverage for loss resulting from traumatic injury provided under this section shall cease at midnight on the date of the termination of the member’s duty status in the uniformed services that established eligibility for Servicemembers’ Group Life Insurance. The termination of cov- erage under this section is effective in accord- ance with the preceding sentence, notwith- standing any continuation after the date speci- fied in that sentence of Servicemembers’ Group Life Insurance coverage pursuant to section 1968(a) of this title for a period specified in that section. (i) Insurance coverage provided under this sec- tion is not convertible to Veterans’ Group Life Insurance. (j) Regulations under this section shall be pre- scribed in consultation with the Secretary of Defense. (k) DESIGNATION OF FIDUCIARY OR TRUSTEE.— (1) The Secretary concerned, in consultation with the Secretary, shall develop a process for the designation of a fiduciary or trustee of a member of the uniformed services who is insured Page 553 TITLE 38—VETERANS’ BENEFITS § 1980A against traumatic injury under this section. The fiduciary or trustee so designated would receive a payment for a qualifying loss under this sec- tion if the member is medically incapacitated (as determined pursuant to regulations pre- scribed by the Secretary concerned in consulta- tion with the Secretary) or experiencing an ex- tended loss of consciousness. (2) The process under paragraph (1) may re- quire each member of the uniformed services who is insured under this section to— (A) designate an individual as the member’s fiduciary or trustee for purposes of subsection (a); or (B) elect that a court of proper jurisdiction designate an individual as the member’s fidu- ciary or trustee for purposes of subsection (a) in the event that the member becomes medi- cally incapacitated or experiences an extended loss of consciousness. (l)(1) If a claim for benefits under this section is denied, the Secretary concerned shall provide to the member at the same time as the member is informed of such denial a description of the following: (A) Each reason for that denial, including a description of all the information upon which the denial is based and a description of the ap- plicable laws, regulations, or policies, with ap- propriate citations, and an explanation of how such laws, regulations, or policies affected the denial. (B) Each finding that is favorable to the member. (2) Any finding favorable to the member as de- scribed in paragraph (1)(B) shall be binding on all subsequent reviews or appeals of the denial of the claim, unless clear and convincing evi- dence is shown to the contrary to rebut such fa- vorable finding. (Added Pub. L. 109–13, div. A, title I, § 1032(a)(2), May 11, 2005, 119 Stat. 257; amended Pub. L. 109–233, title V, § 501(a), June 15, 2006, 120 Stat. 411; Pub. L. 110–181, div. A, title XVII, § 1711, Jan. 28, 2008, 122 Stat. 495; Pub. L. 111–275, title IV, § 406(a)(1), title X, § 1001(d)(2), Oct. 13, 2010, 124 Stat. 2880, 2896; Pub. L. 116–315, title II, § 2005, Jan. 5, 2021, 134 Stat. 4974.) Editorial Notes AMENDMENTS 2021—Subsec. (l). Pub. L. 116–315 added subsec. (l). 2010—Subsec. (d). Pub. L. 111–275, § 406(a)(1), des- ignated existing provisions as par. (1) and added par. (2). Subsec. (h). Pub. L. 111–275, § 1001(d)(2), inserted ‘‘sec- tion’’ before ‘‘1968(a)’’. 2008—Subsec. (k). Pub. L. 110–181 added subsec. (k). 2006—Subsec. (a). Pub. L. 109–233, § 501(a)(1), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: ‘‘A member who is insured under sub- paragraph (A)(i), (B), or (C)(i) of section 1967(a)(1) shall automatically be issued a traumatic injury protection rider that will provide for a payment not to exceed $100,000 if the member, while so insured, sustains a traumatic injury that results in a loss described in sub- section (b)(1). The maximum amount payable for all in- juries resulting from the same traumatic event shall be limited to $100,000. If a member suffers more than 1 such loss as a result of traumatic injury, payment will be made in accordance with the schedule in subsection (d) for the single loss providing the highest payment.’’ Subsec. (b)(1). Pub. L. 109–233, § 501(a)(2)(A), sub- stituted ‘‘insured against traumatic injury under this section is insured against such losses due to traumatic injury (in this section referred to as ‘qualifying losses’) as are prescribed by the Secretary by regulation. Quali- fying losses so prescribed shall include the following:’’ for ‘‘issued a traumatic injury protection rider under subsection (a) is insured against such traumatic inju- ries, as prescribed by the Secretary, in collaboration with the Secretary of Defense, including, but not lim- ited to—’’ in introductory provisions, capitalized first letter of first word in subpars. (A) to (H), substituted a period for the semicolon at the end of subpars. (A) to (F), and substituted a period for ‘‘; and’’ at the end of subpar. (G). Subsec. (b)(2). Pub. L. 109–233, § 501(a)(2)(B), sub- stituted ‘‘subsection:’’ for ‘‘subsection—’’ in introduc- tory provisions, ‘‘The’’ for ‘‘the’’ at the beginning of subpars. (A) to (C), ‘‘four limbs.’’ for ‘‘4 limbs;’’ in sub- par. (A), a period for ‘‘; and’’ in subpar. (B), and ‘‘one side’’ for ‘‘1 side’’ in subpar. (C), and added subpar. (D). Subsec. (b)(3). Pub. L. 109–233, § 501(a)(2)(C), struck out ‘‘, in collaboration with the Secretary of Defense,’’ after ‘‘The Secretary’’ and substituted ‘‘may prescribe’’ for ‘‘shall prescribe’’ and ‘‘conditions under which cov- erage otherwise provided under this section is ex- cluded’’ for ‘‘the conditions under which coverage against loss will not be provided’’. Subsec. (b)(4). Pub. L. 109–233, § 501(a)(2)(D), added par. (4). Subsec. (c). Pub. L. 109–233, § 501(a)(3), amended sub- sec. (c) generally. Prior to amendment, subsec. (c) read as follows: ‘‘A payment under this section may be made only if— ‘‘(1) the member is insured under Servicemembers’ Group Life Insurance when the traumatic injury is sustained; ‘‘(2) the loss results directly from that traumatic injury and from no other cause; and ‘‘(3) the member suffers the loss before the end of the period prescribed by the Secretary, in collabora- tion with the Secretary of Defense, which begins on the date on which the member sustains the traumatic injury, except, if the loss is quadriplegia, paraplegia, or hemiplegia, the member suffers the loss not later than 365 days after sustaining the traumatic injury.’’ Subsec. (d). Pub. L. 109–233, § 501(a)(4), substituted ‘‘qualifying losses shall be made in accordance with a schedule prescribed by the Secretary, by regulation, specifying the amount of payment to be made for each type of qualifying loss, to be based on the severity of the qualifying loss. The minimum payment that may be prescribed for a qualifying loss is $25,000, and the maximum payment that may be prescribed for a quali- fying loss is $100,000.’’ for ‘‘losses described in sub- section (b)(1) shall be— ‘‘(1) made in accordance with a schedule prescribed by the Secretary, in collaboration with the Secretary of Defense; ‘‘(2) based on the severity of the covered condition; and ‘‘(3) in an amount that is equal to not less than $25,000 and not more than $100,000.’’ Subsec. (e). Pub. L. 109–233, § 501(a)(5), substituted ‘‘Secretary concerned’’ for ‘‘Secretary of the concerned service’’ in par. (2) and ‘‘Secretary’’ for ‘‘Secretary of Veterans Affairs’’ wherever appearing in pars. (1) to (5), struck out ‘‘as the premium allocable to the pay period for providing traumatic injury protection under this section’’ before ‘‘(which shall be the same for all such members)’’ in par. (1), added pars. (6) to (8), and struck out former pars. (6) to (8), which read as follows: ‘‘(6) The cost attributable to insuring such member under this section, less the premiums deducted from the pay of the member’s uniformed service, shall be paid by the Secretary of Defense to the Secretary of Veterans Affairs. This amount shall be paid on a monthly basis, and shall be due within 10 days of the notice provided by the Secretary of Veterans Affairs to the Secretary of the concerned uniformed service. Page 554 TITLE 38—VETERANS’ BENEFITS § 1980A ‘‘(7) The Secretary of Defense shall provide the amount of appropriations required to pay expected claims in a policy year, as determined according to sound actuarial principles by the Secretary of Veterans Affairs. ‘‘(8) The Secretary of Defense shall forward an amount to the Secretary of Veterans Affairs that is equivalent to half the anticipated cost of claims for the current fiscal year, upon the effective date of this legis- lation.’’ Subsec. (f). Pub. L. 109–233, § 501(a)(6), amended sub- sec. (f) generally. Prior to amendment, subsec. (f) read as follows: ‘‘The Secretary of Defense shall certify whether any member claiming the benefit under this section is eligible.’’ Subsec. (g). Pub. L. 109–233, § 501(a)(7), designated first sentence as par. (1), substituted ‘‘may not be made under the insurance coverage under this section’’ for ‘‘will not be made’’ and ‘‘a period prescribed by the Sec- retary, by regulation, for such purpose that begins on the date’’ for ‘‘the period prescribed by the Secretary, in collaboration with the Secretary of Defense, which begins on the date’’, designated second sentence as par. (2), and substituted ‘‘If a member eligible for a pay- ment under this section’’ for ‘‘If the member’’, ‘‘shall be’’ for ‘‘will be’’, and ‘‘to the beneficiary or bene- ficiaries to whom the payment would be made if the payment were life insurance under section 1967(a) of this title.’’ for ‘‘according to the member’s most cur- rent beneficiary designation under Servicemembers’ Group Life Insurance, or a by law designation, if appli- cable.’’ Subsec. (h). Pub. L. 109–233, § 501(a)(8), substituted ‘‘termination of the member’s duty status in the uni- formed services that established eligibility for Servicemembers’ Group Life Insurance’’ for ‘‘member’s separation from the uniformed service’’ in first sen- tence, added second sentence, and struck out former second sentence which read as follows: ‘‘Payment will not be made for any loss resulting from injury incurred after the date a member is separated from the uni- formed services.’’ Subsec. (j). Pub. L. 109–233, § 501(a)(9), added subsec. (j). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2010 AMENDMENT Pub. L. 111–275, title IV, § 406(a)(2), Oct. 13, 2010, 124 Stat. 2880, provided that: ‘‘The amendments made by paragraph (1) [amending this section] shall take effect on October 1, 2011.’’ EFFECTIVE DATE Pub. L. 109–13, div. A, title I, § 1032(d), May 11, 2005, 119 Stat. 259, provided that: ‘‘(1) IN GENERAL.—The amendments made by this sec- tion [enacting this section and amending section 1965 of this title] shall take effect on the first day of the first month beginning more than 180 days after the date of enactment of this Act [May 11, 2005]. ‘‘(2) RULEMAKING.—Before the effective date described in paragraph (1), the Secretary of Veterans Affairs, in collaboration with the Secretary of Defense, shall issue regulations to carry out the amendments made by this section.’’ PAYMENTS FOR QUALIFYING LOSSES INCURRED BEFORE OCTOBER 13, 2010 Pub. L. 111–275, title IV, § 406(b), Oct. 13, 2010, 124 Stat. 2880, provided that: ‘‘(1) IN GENERAL.—To the extent necessary, the Sec- retary of Veterans Affairs shall prescribe in regulations mechanisms for payments under section 1980A of title 38, United States Code, for qualifying losses incurred before the date of the enactment of this Act [Oct. 13, 2010], by reason of paragraph (2) of subsection (d) of such section (as added by subsection (a)(1) of this sec- tion). ‘‘(2) QUALIFYING LOSS DEFINED.—In this subsection, the term ‘qualifying loss’ means— ‘‘(A) a loss specified in the second sentence of sub- section (b)(1) of section 1980A of title 38, United States Code; and ‘‘(B) any other loss specified by the Secretary of Veterans Affairs pursuant to the first sentence of that subsection.’’ RETROACTIVE PROVISION Pub. L. 109–233, title V, § 501(b), June 15, 2006, 120 Stat. 414, as amended by Pub. L. 111–275, title IV, § 408(a), Oct. 13, 2010, 124 Stat. 2881, provided that: ‘‘(1) ELIGIBILITY.—A member of the uniformed serv- ices who during the period beginning on October 7, 2001, and ending at the close of November 30, 2005, sustains a traumatic injury resulting in a qualifying loss is eli- gible for coverage for that loss under section 1980A of title 38, United States Code. ‘‘(2) CERTIFICATION OF PERSONS ENTITLED TO PAY- MENT.—The Secretary concerned shall certify to the life insurance company issuing the policy of life insur- ance for Servicemembers’ Group Life Insurance under chapter 19 of title 38, United States Code, the name and address of each person who the Secretary concerned de- termines to be entitled by reason of paragraph (1) to a payment under section 1980A of title 38, United States Code, plus such additional information as the Secretary of Veterans Affairs may require. ‘‘(3) FUNDING.—At the time a certification is made under paragraph (2), the Secretary concerned, from funds then available to that Secretary for the pay of members of the uniformed services under the jurisdic- tion of that Secretary, shall pay to the Secretary of Veterans Affairs the amount of funds the Secretary of Veterans Affairs determines to be necessary to pay all costs related to payments to be made under that cer- tification. Amounts received by the Secretary of Vet- erans Affairs under this paragraph shall be deposited to the credit of the revolving fund in the Treasury of the United States established under section 1969(d) of title 38, United States Code. ‘‘(4) QUALIFYING LOSS.—For purposes of this sub- section, the term ‘qualifying loss’ means— ‘‘(A) a loss specified in the second sentence of sub- section (b)(1) of section 1980A of title 38, United States Code, as amended by subsection (a); and ‘‘(B) any other loss specified by the Secretary of Veterans Affairs pursuant to the first sentence of that subsection. ‘‘(5) SECRETARY CONCERNED.—For purposes of this sub- section, the term ‘Secretary concerned’ has the mean- ing given that term in paragraph (25) of section 101 of title 38, United States Code.’’ [Pub. L. 111–275, title IV, § 408(c), Oct. 13, 2010, 124 Stat. 2881, provided that: ‘‘The amendments made by this section [amending section 501(b)(1) of Pub. L. 109–233, set out above] shall take effect on October 1, 2011.’’] Pub. L. 109–13, div. A, title I, § 1032(c), May 11, 2005, 119 Stat. 259, which provided for retroactive traumatic in- jury benefits, was repealed by Pub. L. 109–233, title V, § 501(c)(2), June 15, 2006, 120 Stat. 415. SUBCHAPTER IV—GENERAL Editorial Notes AMENDMENTS 1965—Pub. L. 89–214, § 1(a), Sept. 29, 1965, 79 Stat. 880, redesignated ‘‘SUBCHAPTER III—GENERAL’’ as ‘‘SUBCHAPTER IV—GENERAL’’. Statutory Notes and Related Subsidiaries DEPARTMENT OF VETERANS AFFAIRS IMPROVEMENT OF TREATMENT OF UNDISBURSED LIFE INSURANCE BENE- FITS Pub. L. 117–313, § 4, Dec. 27, 2022, 136 Stat. 4400, pro- vided that: