A veteran, a financial dependent, a parent or the un-remarried surviving spouse of a Veteran may be able to receive disability benefits under the Compensation or Pension programs.
- A Veteran is someone who served at least 90 days of active duty federal service (exclusive of active duty for training) or completed the term of service for which they enlisted. A Pensioner must have served at least one day during wartime period.
- A Dependent of a Veteran is usually a child under the age of 18 or who became permanently disabled before age 18.
- Parent(s) of a veteran who are dependent upon him/her for financial support may be paid additional benefits. Dependency of a parent is based on need. Both the parental relationship and dependency of the parent must be established. Like Pension, this benefit is based on financial need.
- An un-remarried Surviving Spouse is someone who was legally married to the Veteran at the time of his or her death and has not remarried.
VA considers a licensed assisted living facility to provide “custodial care.” For custodial care to be a UME (unreimbursed medical expense), and thus deductible from gross income for pension eligibility purposes, the facility must provide at least two nursing services to the claimant such as: bathing (showering), dressing, grooming, toileting, feeding, transfers or assistance with ambulation. Note: assistance with medications is not considered a “nursing service” by VA at this point.
Alternatively, the costs of living at a non-licensed care facility, such as a senior living or so-called ‘independent living’ facility may be considered a UME and thus deductible if: (i) the claimant’s physician states in writing that the claimant is required to reside at that facility in order to “separately contract for custodial care from a third-party provider,” and (ii) a third-party care provider is delivering at least two nursing services as outlined above. VA regulations also state that, for special aid and attendance purposes, a non-dependent family member may be the third-party care provider.
Federal law requires anyone assisting with a claim for VA benefits be accredited by the VA General Counsel (Title 38 USC §5901 and 38 CFR 14.626.) The VA only recognizes three types of individuals that can be accredited: attorneys, claims agents and Veteran Service Officers (38 CFR § 14.629.) Every person accredited by the VA receives credentials from the General Counsel. Ask to see credentials or search for them on the General Counsels website. If the person offering to assist cannot provide their official VA credentials or you cannot find their name listed on the General Counsel’s website, then you should look for someone who is accredited. It is a violation of federal law to assist someone with filing a claim for VA benefits, if you are not accredited by the VA. This also applies to individuals who state that, although they will help prepare or give advice on a claim, the actual claim is filed by an individual who is accredited. Even to give advice or assist on a claim requires VA accreditation. This law was enacted in order protect veterans and their families and to assure that veterans have qualified representation.
Current federal law only regulates assistance provided after a person becomes a claimant for VA benefits. A person becomes a claimant under federal law when they actually begin the process of preparing a claim or when they express intent to prepare a claim. (38 CFR § 14.627(h)). Attorneys may offer and charge a legal fee for general assistance with VA questions, including general issues on the law and potential eligibility in the form of a Pre-Filing Consultation. (VA General Counsel Opinion dated May 24, 2004). Click here for OGC letter supporting pre-filing consultation attorney fees.
No. Absolutely not. While the federal regulations are vague, VA internal policy manuals (the Adjudication Procedures Manual) specifically dictate the procedure a VA adjudicator will use to determine if you have “limited net worth.” No amount is ever given as “safe.” In fact, the VA goes to great length to state that each individual’s case will be decided on the facts in the case, including age. There is no formula.
Potentially, Yes. If a veteran served “in-country” (including “brown-water” navy) from 2/28/1961 to 7/7/1975, they are considered in law to have been exposed to toxic herbicides commonly called “Agent Orange” or AO. VA, with the assistance of the National Institutes of Health, have identified 14 common diseases (Prostate Cancer, Parkinson’s Disease, Type II Diabetes, Ischemic Heart Disease, Respiratory Cancer, etc.) as being directly caused by AO exposure. Any veteran who served in Vietnam should contact their nearest VA Medical Center for an Agent Orange Registry Exam which will look for signs of these diseases. Importantly, if a Vietnam veteran has been diagnosed with one or more of these diseases; it is presumptively considered a Service Connected disability and eligible for Compensation benefits. If, due to the severity of AO-presumed diseases, a veteran cannot “seek, gain or hold substantially gainful employment,” regardless of age, the VA is obligated under law to rate them totally disabled due to total individual un-employability. This can provide substantial financial assistance.
Not at this time. However, the General Accountability Office has recommended such legislation be considered and VA has concurred. Currently, legislation is pending in Congress to implement a three-year look-back period in order to prohibit inappropriate transfers of assets to create artificial Pension eligibility.
Filing a claim for VA disability benefits is a complicated process, even with so-called “simple” claims. Even though the VA makes basic claim forms available on-line and through its automated VONAPP system, the process can be daunting. Essentially, you can say anything you want on the claim application; however, federal regulations require that some (not all) of the information you provide be supported by evidence. It is also helpful for this evidence to be in a certain format expected by the VA. Getting the proper information and evidence to the VA in the initial package and filing under the Fully Developed Claim Act can significantly reduce processing time. To the contrary, not knowing what evidence is legally required or providing evidence that is not needed, can substantially delay the adjudication of the claim.
Yes. The VA considers such a gift as unearned income. However, the gift is not counted as income to your parent for Pension calculation if your financial assistance is paid directly to the biller of medical or living expenses. By paying the bill directly; for example to an assistance living facility, the gift falls under the definition of “private charity” (38 CFR 3.272(b)) and is not countable as income.
No. Charging a fee for advice or representation once an individual becomes a “claimant” before the VA is unlawful pursuant to 38 USC § 5905. No one who is VA accredited may charge a fee or accept a gratuity, donation or gift for their assistance on an administrative claim. An exception occurs when a claim has been denied and a formal Notice of Disagreement has been filed with the VA. Fees charged after a Notice of Disagreement or on an appeal are allowed on a regulated basis.
No. CFEVR only provides legal advice on matters of veterans benefits under Title 38 U.S.C. and claims before the administrative body of the DVA. Since assets are only an eligibility issue in Pension cases, it helps to understand that Pension is basically an income safety-net for wartime veterans and their un-remarried surviving spouses; it guarantees a minimum net income. One of the eligibility requirements is demonstration of limited net worth. Essentially, a claimant will be denied pension benefits if it is reasonable that some part of the corpus of such estates be consumed for the veteran’s maintenance. 38 U.S.C. § 1522. We will be happy to tell you what the law states and/or consult with your trusted advisor.
The effective date of VA disability awards is the first day of the month after the claim was received by the VA. It does not start when the VA actually receives the claim. If it takes the VA 4-5 months to adjudicate your claim, your first award check will be for all of the months from the effective date. This is called the retroactive payment. Subsequently, the VA will pay benefits on the first of every month for the preceding month. It is important to note that if the VA proposes to find the claimant incompetent to handle their own financial affairs, this retroactive payment will be held by the VA until a fiduciary is appointed.
Whenever VA believes, based on evidence of record, that a claimant entitled to benefits is unable to manage his or her VA entitlements independently; the VA will propose the claimant be considered (rated) incompetent for VA purposes. This proposal may be accepted or challenged. If it is accepted, the VA will proceed to appoint (generally) a family member as the Fiduciary of the claimant and all VA funds will be paid to the Fiduciary. It generally takes 6-12 months for this process to be completed. Although VA will begin the “running” award, all retroactive payments will be withheld until the Fiduciary has been appointed. The purpose of Fiduciary appointments is to eliminate the possibility of fraud or misuse of VA funds.