VA Benefits Accreditation Course 3 CLE Hours

Transcription

1 VA Benefits Accreditation Course 3 CLE Hours BY: VICTORIA L. COLLIER, Attorney Accredited by the VA, #9079 Admitted to Practice before the United States Court of Veterans Claims Member of the National Organization of Veteran Advocates Member of the National Academy of Elder Law Attorneys Co-Author of VisPro Author and Presenter of In the Trenches 2-day VA Workshop Author Contact Information: Victoria L. Collier The Elder & Disability Law Firm of Victoria L. Collier, PC 160 Clairemont Ave., Suite 440 Decatur, GA All rights reserved 2008

2 I. Introduction...1 A. Why are we Discussing VA Benefits?...1 B. History of VA...2 C. Mission of VA...3 II. Overview of VA Organizational Relationships...3 A. Office of the Secretary...3 B. Office of the General Counsel...4 C. Veterans Benefits Administration...5 D. Veterans Health Administration...5 E. National Cemetery System...5 III. Applicable Laws...7 A. Adjudication of VA Claims Title 38 U.S.C.S C.F.R M21-1 and M21-MR General Counsel Opinions Case law B. Representation of a Claimant C.F.R (2008) Federal Register/Vol. 73, No. 100, page , May 22, VA Form 21a IV. Attorney Fees...11 A. Senate Bill

3 B. Public Law C. Fee Agreements...13 D. 38 C.F.R (2008)...13 E. Pre-filing Consultative Services 1. Federal Register/Vol. 73, No. 100, page (2008) Lane Evans Letter May 24, Examples - Case studies regarding Fees...17 V. Veterans Health Administration...19 A. Entering the System...19 B. VA Nursing homes...20 C. Prescriptions...21 VI. Veterans Benefits Administration...22 A. Service Connected Disabilities Veterans Death Claims Qualified Family Members...25 A. Death Indemnity Claims...26 B. Accrued Benefits...27 C. Death Pension...28 B. Non-Service Connected Benefits Basic Eligibility Criteria Types of Improved Monthly Pension Benefits...30 A. Low Income Pension...30 B. Housebound Pension...30

4 C. Aid and Attendance Pension Income Limits Asset Requirements...33 A. Standard...33 B. Presumption of Sufficient Means...33 C. Age Analysis...34 VII. Application Process...35 A. Helpful Tips...35 B. Planning Tips...36 VIII. Appealing a VA Decision...38 A. Regional Office...38 B. Board of Veteran s Appeals (BVA)...40 C. U.S. Court of Appeals for Veterans Claims (CAVC)...40 D. U.S. Court of Appeals for the Federal Circuit...41 IX. Resources for Practitioners...42 X. Conclusion...43

5 I. Introduction A. WHY are we discussing VA Benefits? As of September 30, 2007, there were 23,532,000 living veterans. Of those, 17,484,000 served in the military during a war time period. 1 As of March 31, 2008, 2.9 million veterans were receiving service connected disability compensation, with 272,425 of them rated as 100% disabled. 2 The census in 2000 revealed that there were 9,722,988 service men and women OVER the age of 65 living in the United States, 3 which is over one third of the veteran population (39.1%). 4 Of those, 5,185,518 served during WWII and 3,250,316 served during the Korean War. 5 With the passage of DRA 2005, and shrinking Medicaid benefits, it behooves all elder care attorneys to learn as much as possible about VA benefits that are available for their elderly clients. Many veterans have no idea that they can get additional income to pay for home health care, assisted living care, and nursing home care. Moreover, the laws with regard to representation of veterans has changed, that all attorneys that represent veterans in the preparation, presentation, and prosecution of VA claims to be accredited through the VA Id C.F.R (2008). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 1

6 The focus of this 3 hour seminar, VA Benefits Accreditation Course, is designed to deliver the minimum required information in order to meet the continuing legal education requirements for accreditation through the VA. B. VA Compensation and Pension are not NEW Benefits The first U.S. Congress passed a law in 1789 to provide pensions to disabled veterans and their dependents. 7 In 1930 the Veterans Administration was established to consolidate and coordinate government activities affecting war veterans. 8 The VA experienced enormous growth after WWII with the return of 16 million veterans. In 1953, the Department of Veterans Benefits (DVB) was created to administer the VA s huge compensation and pension program. 9 The Veterans Administration became a Cabinet-level position, the Department of Veterans Affairs (VA), on March 15, 1989, 10 when President Bush declared, There is only one place for the veterans of America, in the Cabinet Room, at the table with the President of the United States of America. 11 C. Mission of the VA 7 M21-1, Chapter 1, Section 1.01(a). 8 M21-1, Chapter 1, Section 1.01(g). 9 Id. 10 M21-1, Chapter 1, Section 1.01(h). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 2

7 Abraham Lincoln emphasized the debt owed to America s veterans, to care for him who shall have borne the battle and for his widow and his orphan The stated Mission of the VA is To serve America s veterans and their families as their principal advocate in ensuring that they receive the care, support, and recognition they have earned in service to this nation. 13 D. Anthony Principi, Secretary of VA America s veterans deserve the best health care and compensation system we can provide. 14 II. Overview of VA Organizational Relationships A. Office of the Secretary The Secretary is appointed by the President. The Secretary has the overall responsibility of running the VA, the 2 nd largest department in the Federal Government (8/3/2008). 12 M21-1, Prologue 13 M21-1, Chapter 1, Section News Release (2/3/2003). 15 M21-1, Section 1.03(a)(1). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 3

8 B. Office of the General Counsel The General Counsel is also appointed by the President. The GC serves as the chief legal officer on all matters of law, litigation, and legislation. 16 The office of the GC interprets all laws pertaining to the Department. 17 The Mission of the Office of General Counsel (OGC) is to identify and meet the legal needs of the Department of Veterans Affairs (VA). 18 Its primary objective is to ensure the just and faithful execution of the laws, regulations and policies that the Secretary has responsibility for administering, and by so doing enable the Department to accomplish its mission of service to our Nation's veterans. 19 The current GC is: Paul J. Hutter, the current Deputy General Counsel is John (Jack) Thompson, 20 and Assistant General Counsel, Richard J. Hipolit. The General Counsel can be contacted at (202) When working with the GC s office, you will likely be working through a staff attorney. 16 M21-1, Section 1.03(a)(2). 17 Id (8/3/2008). 19 Id. 20 Id. VA Benefits Accreditation Course by Victoria Collier, Attorney Page 4

9 C. Veterans Benefits Administration (VBA) The VBA provides an integrated program of veterans benefits. 21 The major benefits include: Compensation (for service connected disabilities) Pension (for non-service connected disabilities) Burial Benefits Rehabilitation assistance; Education and Training Home Loans Insurance D. Veterans Health Administration (VHA) 22 The VHA operates and maintains the nationwide network of VA: Medical centers Research centers Information resource centers E. National Cemetery System 1. National Cemetery System: 23 Burial benefits available include a grave site in any of the 125 national cemeteries with available space, opening and closing of the grave, perpetual care, a Government headstone or marker, a burial flag, and a Presidential Memorial Certificate, at no cost to the family. 24 Some veterans 21 M21-1, Section 1.03(a)(3). 22 M21-1, Section 1.03(a)(4). 23 M21-1, Section 1.04(a)(5) (8/3/2008). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 5

10 may also be eligible for Burial Allowances. Cremated remains are buried or inured in national cemeteries in the same manner and with the same honors as casketed remains. 25 Burial benefits available for spouses and dependents buried in a national cemetery include burial with the veteran, perpetual care, and the spouse or dependents name and date of birth and death will be inscribed on the veteran s headstone, at no cost to the family. 26 Eligible spouses and dependents may be buried, even if they predecease the veteran Private Cemetery System: Burial benefits available for veterans buried in a private cemetery include a Government headstone or marker, a burial flag, and a Presidential Memorial Certificate, at no cost to the family. 28 Spouses and dependents are not eligible for any benefits in a private cemetery Eligibility: To confirm your eligibility for burial benefits, please call a Veteran s Benefits Counselor at: Eligibility is based on many factors which can be found at 25 Id (8/3/2008). 27 Id (8/3/2008). 29 Id. VA Benefits Accreditation Course by Victoria Collier, Attorney Page 6

11 III. Applicable Laws A. Adjudication of VA Claims 1. Title 38 of the United States Code is the section that applies to veterans benefits that are applicable to your clients Code of Federal Regulations encompasses the regulations that pertain to the adjudication of claims for compensation, pension and other benefits that are processed by adjudication personnel. The CFR is organized into sections. You will work with Part 3 - Adjudication the most. However, Parts 1, 14, 19, and 20 have been recently updated and pertain to Accreditation of Agents and Attorneys; Agent and Attorney Fees; Final Rule. 3. M21-1 and M21-MR is the adjudication manual that the VA adjudication processors use. It is over 3,000 pages and is available on-line. The M21-MR is where the updates to the manual are published. It is also available on-line. The M21-1 can be found at: and the M21-MR can be found at: 4. General Counsel Opinions: The GC issues written legal opinions having precedential effect in adjudications and appeals involving veterans' benefits under laws administered by VA. 30 The General Counsel's interpretations on legal matters, contained in such opinions, are conclusive as to all VA officials and employees not only in the matter at issue but also in future adjudications and appeals, in the absence of a change in controlling statute or regulation, Court decision, or a superseding written legal opinion of 30 VA Benefits Accreditation Course by Victoria Collier, Attorney Page 7

12 the General Counsel. 31 The VA provides these opinions in order to give the public notice of those interpretations of the General Counsel that must be followed in future benefit matters and to assist veterans' benefit claimants and their representatives in the prosecution of benefit claims. 32 These opinions can be found at: B. WHO Can Represent a Claimant? 1. The Claimant can represent himself directly. 2. A Veteran Service Organization (VSO) that is accredited through the VA. 33 Examples of such are the American Legion, the Disabled American Veterans, the Veterans of Foreign Wars, or State VA offices. A full list can be found at 3. An individual who has been accredited by the VA. 34 Generally this is an individual person who has received training by the VA and has passed a test provided by the VA. The agent must agree not to charge for services rendered in assisting with the claim. 4. A one-time power of attorney person. This person is usually a child or relative of the claimant. 38 CFR Id. 32 Id U.S.C.S. 5902(a); 38 C.F.R (2003) U.S.C.S. 5903; 38 C.F.R (2008). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 8

13 5. An ATTORNEY who is a member in good standing with a State Bar AND has been accredited by the VA, as of June 23, Accreditation of attorneys requires that the attorney file a VA Form 21a, Application for Accreditation as a Claims Agent or Attorney, with the Office of General Counsel. The form can be downloaded from the VA website at: Once the Office of General Counsel (GC) receives the form, they will make a determination as to character and fitness. The GC will presume an attorney s character and fitness to practice before the VA based on State bar membership in good standing unless the GC receives credible information to the contrary. 36 Assuming accreditation is approved, which will occur approximately 30 days after the GC receives the application, the attorney can then represent veterans with the preparation, presentation, and prosecution of claims before the VA. After receiving accreditation approval, both agents and attorneys are required to complete 3 hours of qualifying continuing legal education (CLE) during the first 12-month period following the date of initial accreditation by VA U.S.C.S (not yet updated with current changes); 38 C.F.R (b) (May 22, 2008) C.F.R (b)(ii) (May 22, 2008) C.F.R (b)(iii) (May 22, 2008). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 9

14 The CLE course must be approved for a minimum of 3 hours of CLE by ANY State bar association and, at a minimum, must include the following topics: Representation before the VA; 2. Claims Procedures; 3. Basic Eligibility for VA benefits; 4. Right to Appeal; 5. Disability Compensation (38 USC Chapter 11); 6. Dependency and Indemnity Compensation (DIC) (38 USC Chapter 13); and 7. Pension (38 USC Chapter 15). After completing the 3 hour CLE, the attorney shall certify in writing to the GC that they have completed the qualifying CLE. 39 The certification shall include the title of the CLE, date and time of the CLE, and identification of the CLE provider. 40 For example, your certification would look something like the following: I, Victoria L. Collier #9079, am formally notifying the Office of General Counsel, that I have completed the qualifying CLE to remain accredited through the VA pursuant to 38 CFR I attended the VA Benefits Accreditation Course, on September 25, 2008, from 3:00-6:00 p.m., which 38 Id. 39 Id. 40 Id. VA Benefits Accreditation Course by Victoria Collier, Attorney Page 10

15 was provided by Victoria L. Collier, and approved through the State Bar of Georgia for 3 CLE hours. To maintain accreditation beyond the first year, the agent or attorney must complete an additional 3 hours of qualifying CLE on veterans benefits laws not later than 3 years from the date of initial accreditation and every two years thereafter. 41 Legal interns, law students, and paralegals cannot be independently accredited to represent claimants under 38 CFR Nevertheless, a legal intern, law student, or certified paralegal may assist in the preparation, presentation, or prosecution of a claim, under the direct supervision of an attorney of record designated under section (a), if the claimant s written consent is furnished to the VA. 42 IV. Attorney s Fees: Veterans may obtain free assistance with filling out an application for benefits from accredited veteran services organizations. Only accredited agents and attorneys may receive fees from claimants or appellants for their services provided in connection with representation. 43 However, no organization nor individual, including lawyers, can charge for the preparation, presentation, and prosecution of a claim 44 (completing C.F.R (b)(iv) (May 22, 2008) C.F.R (c)(3) (May 22, 2008) C.F.R (b) (May 22, 2008). 44 FR Vol. 73, No. 100, page (May 22, 2008). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 11

16 and filing applications). But, if a claimant is denied or approved for fewer benefits than what is expected, a claimant may hire a paid representative to assist with an appeal after a Notice of Disagreement has been filed (for appeals filed on or after June 20, 2007), and wherein the attorney has complied with the power of attorney requirements in 38 CFR For appeals filed prior to June 20, 2007, agents and attorneys may charge fees only for services provided after both of the following conditions have been met: A final decision was promulgated by the Board with respect to the issue, or issues, involved in the appeal, 47 and 2. The agent or attorney was retained not later than 1 year following the date that the decision by the Board was promulgated. 48 History of the Current Laws Regarding Attorneys Fees: Senate Bill 3421 Veterans Benefits, Health Care, and Information Technology Act of 2006 Title I; see Public Law (See letter dated June 6, 2007) Attorneys may charge fees for service after a notice of disagreement has been filed with respect to the case. The NOD must have been filed on or after June 20, C.F.R (c) (May 22, 2008) C.F.R (c)(2) (May 22, 2008) C.F.R (c)(2)(i) (May 22, 2008) C.F.R (c)(2)(ii) (May 22, 2008). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 12

17 Fee agreements must be in writing and signed by both the claimant and attorney. 49 Fee agreements must include the following information: name of veteran, name of claimant (if different from the veteran), name of any third party disinterested payer, applicable VA file number, specific terms under which the amount to be paid for services of the attorney will be determined, and they must also clearly specify if VA is to pay the attorney directly out of past due benefits. 50 Attorneys fees must be reasonable, 51 but there is no limit. Fees can be based on flat fee arrangements, hourly, a percentage of benefits recovered, or a combination of these. 52 If fees are limited by the agreement to 20% of past due benefits, then they are presumed to be reasonable 53 and VA will pay them without question. If fees are for more than 33 1/3 of past due benefits, then the fees are presumed to be unreasonable, which is a presumption that can be rebutted. 54 Pre-Filing Consultative Services The laws and regulations focus primarily on representation before the VA for appellate purposes. There is little discussion on whether an attorney C.F.R (g) (May 22, 2008) C.F.R (g)(1)-(2) (May 22, 2008) C.F.R (e) (May 22, 2008). 52 Id C.F.R (f) (May 22, 2008). 54 Id. VA Benefits Accreditation Course by Victoria Collier, Attorney Page 13

18 can charge for pre-filing consultations. 55 However, elder care attorneys and estate planning attorneys who advise clients on planning options for long-term care need clear guidance on this issue. Below are the points of interest to assist in determining when and when you should not charge a veteran for your assistance. 1. A Claimant is a person who has filed or has expressed to a representative, agent, or attorney an intention to file a written application for determination of entitlement to benefits provided under title 38, United States Code Proceedings before the VA include the preparation, presentation, and prosecution of claims. In FR Vol. 73, No. 100, page 29866, the drafters state that... the law is clear that VA s authority to regulate is limited to accreditation for purposes of preparation, presentation, and prosecution of claims Claims are application(s) made under 38 USC...for entitlement to VA benefits, reinstatement continuation, or increase of benefits, or the defense of proposed agency adverse action concerning benefits A letter to Honorable Lane Evans (former Ranking Member of hte U.S. House of Representatives) from the Office of General Counsel, dated May 24, 2004 presents a legal conclusion that attorneys may charge for prefiling consultative services, which include meeting with a veteran, reviewing 55 See FR/Vol. 73, No. 100, page (May 22, 2008) C.F.R (h) (May 22, 2008) C.F.R (g) (May 22, 2008). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 14

19 records, doing research, and providing counseling and any other assistance that a potential VA claimant might need short of actually preparing and presenting a specific claim for benefits. However, once the veteran expresses a desire to file a claim, then no other fees can be charged. 5. Representation of a claimant may include counseling on veterans benefits, gathering information necessary to file a claim for benefits, preparing claims forms, submitting information to VA, and communicating with VA for a claimant. OGC letter, dated November 21, In summation: A. No individual may act as an agent or attorney in the preparation, presentation, or prosecution of any claim... (OGC Letter, November 21, 2006) unless accredited by the VA. 38 CFR B. You become an agent/representative when the veteran/claimant expresses an intent to file a claim for benefits. C. Prior to the expression to file a claim, you are not an agent and therefore are not before the Department. D. Prior to the expression to file a claim, you can charge for consultative services, research, counseling, etc. Letter to Lane Evans, E. After the expressed intention to file a claim, you become a representative and representation includes counseling, gathering information necessary to file a claim for benefits, etc. and at this point you cannot charge for services. OGC letter, What is the key? Do not allow your clients to express their intention to file a VA claim for benefits until after you have discussed all options, VA Benefits Accreditation Course by Victoria Collier, Attorney Page 15

20 assessed whether they are eligible, have gathered all necessary information to determine eligibility, and performed all necessary actions to ensure eligibility. VA Benefits Accreditation Course by Victoria Collier, Attorney Page 16

21 Examples of Charging for Pre-filing Consultative Services: 1. A client calls and you schedule a consultation. He says he just wants to apply for VA A&A. You meet with him and you determine in the consultation that he is already eligible for benefits financially and medically. There are no other elder care services or estate planning services necessary. Do you charge? NO. Do you assist with the application? Only if you are accredited through the VA. If so, do you charge? NO. 2. A client calls and you schedule a consultation. He says he just wants to apply for VA A&A. You meet with him and you determine in the consultation that he is already eligible for benefits financially and medically. However, you also discover that he needs wills and powers of attorney. Do you charge? Partially. What services do you charge for? Consulting on estate planning documents, but not VA benefits. Documents? Preparation and execution of estate planning documents. Application for VA benefits? NO. 3. A client calls and you schedule a consultation. He says he just wants to apply for VA A&A. You meet with him and you determine in the consultation that he is NOT eligible for benefits financially. You decide to prepare a trust, powers of attorney, personal services contract, etc. Do you charge? Yes, you can charge for the elder care consultative services of advising on the need for estate planning and elder care planning documents. What services do you charge for? Advice, knowledge, drafting, and executing an estate and elder care plan. VA Application? No. 4. A client calls and you schedule a consultation. He says he just wants to preserve all his money from Medicaid. You meet with him and you VA Benefits Accreditation Course by Victoria Collier, Attorney Page 17

22 determine in the consultation that he could benefit from VA benefits planning (although he knew nothing about this) and he might be able to benefit from Medicaid planning. He is NOT currently eligible for either benefit. You decide to prepare a plan to preserve assets in order to obtain VA benefits now and Medicaid in the future. Do you charge? Yes. What services do you charge for? For the consultation to discuss elder care planning that includes qualification for all government benefits, including Medicaid and VA benefits; devising a plan for qualification; preparation and execution of documents necessary to effectuate the plan. VA Application? No. Victoria s Conservative Position If the client is eligible for VA benefits and you are not advising on how to get eligible and you are only educating your client on the benefits that are available, then you do not need to be accredited to educate them and you must do these services pro bono. If the client is not eligible for benefits and you are advising them on how to become eligible, whether or not you assist them in the implementation of the plan, you should be accredited. You can charge for your legal advise on how to become eligible (but only if the client has NOT expressed a desire to file a specific claim). If the client is not eligible for benefits and you advise them on how to become eligible, assist them in implementing the plan, but then refer them to the VSO to complete and file the application, then you should be accredited even though you are not technically before the VA. You can charge for your elder care legal advise and assistance. You should not charge anything once VA Benefits Accreditation Course by Victoria Collier, Attorney Page 18

23 you advise them to seek assistance with the VSO. You would not file a VA Form 21-22a to act as formal agent. The VSO may file the VA Form If the client is not eligible for benefits and you advise them on how to become eligible, assist them in implementing the plan, along with any other plan such as Medicaid benefits, and you assist with completing the application, filing the application, and following up with the VA, then you should be accredited, you can charge for your advice and implementation, but all work on the completion of the application, filing it with the VA, and following up with the VA must be completely pro bono. You should file a VA Form 21-22a to act as the client s formal agent before the VA. V. Veterans Health Administration The VHA provides: 58 Inpatient and Outpatient care Geriatric Evaluations Nursing home care domiciliary, home health, adult day, residential/ respite care programs A. Entering the System: To receive health care benefits, the veteran must enter the system. To enter the system, the veteran must complete and file a VA Form 10-10EZ - Application for Medical Benefits (Enrollment form). 59 The primary purpose of 58 M21-1, Chapter 1, VA Benefits Accreditation Course by Victoria Collier, Attorney Page 19

24 this form is to request enrollment in the VA Health Care System (Apply for Medical Benefits). 60 Typically, veterans who have NOT previously enrolled or applied for VA health care benefits should use this form. 61 Enrollment in the health care system is set up by Priority Groups. There are 8 priority groups to which a veteran can be assigned. 62 Assignment is based on the veteran s service record. Priority Group 1 is the highest level of priority; whereas, priority group 8 is the lowest level. As of January 2003, veterans in Priority Group 8 are not eligible for enrollment as a result of the high demand for VA health care and the limited funds and resources available to treat such individuals. 63 Priority Group 8 are veterans who do not have service connected disabilities and who have high net worth and income. B. Nursing Homes: The VA provides skilled nursing care to certain veterans. Generally, only veterans with a service connected disability rating of at least 70% or whose service connected illness caused the need for skilled nursing care will be able to reside in a VA nursing home. There are three different types of VA nursing homes. First, there are Federal VA nursing homes. In order to be eligible to reside at a Federal VA nursing home, the veteran would have to have a service 60 Id. 61 Id. 62 VA Health Care Fact Sheet 164-2, January VA Health Care Fact Sheet 16-3, April VA Benefits Accreditation Course by Victoria Collier, Attorney Page 20

25 connected disability rating of 70% or more. 64 Once residing at a Federal VA nursing home, there should be no charge for care at the facility. Additionally, income and resources should not be a factor of eligibility. The second type of nursing home for veterans is a private nursing home that has a contract with the VA. The eligibility requirements are the same as the Federal VA nursing homes. The private nursing homes have a contract that last 6 months at a time. Each contract is renewed or terminated every six months. There is generally no charge to the veteran who is in a private nursing home under a VA contract and no income or resource limitations. The purpose of this program is to meet the nursing home needs of veterans who require long-term nursing home care in their own community, close to their families. 65 Lastly, most states have State owned VA nursing homes. Qualification is state specific. Usually, the veteran must have served in the military during a war time period. Also, the veteran may have to meet certain state residency requirements. There may or may not be a cost share/patient liability to the nursing home. Income and asset levels are generally not a consideration for eligibility. C. Prescriptions: Veterans who are in the system can obtain their prescriptions from the VA clinic. The veteran can provide a prescription to the VA clinic by a VA physician or a private physician. The co-payment for the prescriptions range VA Benefits Accreditation Course by Victoria Collier, Attorney Page 21

26 from $0.00 to $8.00 per 30 day supply per prescription. For veterans enrolled in Priority Groups 2 through 6, the maximum co-pay for medications that will be charged in calendar year 2008 is $ Certain classes of veterans do not have to pay any co-pay for medication. A list of these veterans include: veterans with a service-connected disability of 50 percent or more; veterans receiving medication for service-connected conditions; veterans whose annual income does not exceed the maximum annual rate of the VA pension; veterans enrolled in Priority Group 6 who receive medication under their special authority; veterans receiving medication for conditions related to sexual trauma related to service on active duty; certain veterans receiving medication for treatment of cancer of the head or neck; veterans receiving medication for a VA-approved research project; and former POWs. 67 VI. Veterans Benefits Administration Eligibility for the different types of benefits largely depends on whether the veteran has a service connected disability or non-service connected disabilities. Other factors also include the veteran s service record, length of time in the service, whether the veteran was disabled in the service or after discharge, and whether the veteran served during a war time period. A. Service Connected Disabilities There is no VA benefit the public supports more strongly than compensation benefits for veterans injured during combat or while on active VA Benefits Accreditation Course by Victoria Collier, Attorney Page 22

27 duty. Institutionally, the VA protects the compensation program before all of its other benefits programs Veterans. A veteran who obtained an injury or disease while on active duty, and the injury was the result of his service or was exacerbated by service, may be entitled to a monthly income called compensation. 69 Veterans are entitled to disability compensation if they meet the following criteria: a. they were discharged or released under conditions other than dishonorable, 70 b. their disease or injury was incurred or aggravated in the line of duty, and 71 c. the disability is not a result of their own willful misconduct or abuse of alcohol or drugs. 72 Entitlement to service connected compensation is not barred by the veteran s employment. Moreover, VA compensation benefits are not affected by earned or unearned income or the value of the veteran s net worth. VA disability compensation is tax free income. The veteran must have a service connected disability rating in order to receive income compensation. Under the statute, the VA assigns disability 68 Veterans Benefits Manual, NVLSP, Lexis, page 56 (2004) U.S.C.S. 101(13); 38 C.F.R. 3.4 (1979) U.S.C.S. 101(2); 38 C.F.R. 3.12(a) (1997) U.S.C.S. 1110, 1131; 38 C.F.R. 3.4(b)(1) (1979). 72 Id.; 38 C.F.R (1995). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 23

28 evaluation of 0% through 100%, in 10% increments. 73 The level of the rating will determine the amount of monthly income received. The higher the rating, the higher the monthly compensation. A veteran can request an increase in the disability rating if the condition worsens. When the disability leads to unemployability, the veteran can file VA form , Veterans Application for Increased Compensation Based on Unemployability. If a veteran is rated 100% disabled, he is considered totally disabled. If the veteran has a disability rating of 100% and is in need of the aid and attendance of another person to assist with the activities of daily living, the veteran can receive, in addition to regular compensation, a special monthly compensation (SMC). 74 In these cases, the injuries must be very severe. In order to receive service connected disability compensation, the veteran must prove three essential requirements. (1) There must be a medical diagnosis of current disability. 75 (2) There must be medical, or lay evidence, of in-service occurrence or aggravation of a disease or injury. 76 (3) There must be a nexus between the in-service occurrence or aggravation of a disease or injury and the current disability U.S.C.S U.S.C.S. 1114; 38 C.F.R (2003) U.S.C.S. 1110, U.S.C.S. 5107(b); 38 C.F.R (2001). 77 See Cotant v. Principi, 17 Vet. App. 116, (2003). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 24

29 Once the VA receives a claim for service connected disability benefits, it processes the claim by following a four-step adjudication process. 78 The claim is submitted to the Regional Office (RO) in the state where the veteran resides. Upon receipt, the RO will determine if the veteran meets the service and discharge requirements. Then, the VA decides if the veteran meets the three essential elements listed above. If so, the VA determines the severity of the service connected disability and assigns a disability rating. Lastly, the VA will set an effective date for the award of benefits. The monthly compensation is then based on the disability rating and begins as of the effective date. 2. Death Claims Dependent survivors of veterans can file claims on their own behalf in three categories, Dependency and Indemnity Compensation (DIC), 79 accrued benefits, and death pension. For each types, the survivor should use Form , DIC, Death Pension, or Accrued Benefits by a Surviving Spouse or Child. Upon furnishing a signed claim form, the VA must review eligibility for dependency and indemnity, death pension, and accrued benefits. Dependent survivors of veterans include surviving spouse, surviving child, and dependent surviving parents. 80 To be a surviving spouse, the spouse had to have been married to the veteran, through a valid marriage, at the time of the veteran s death. 81 A surviving spouse is also required to prove that she 78 See Veterans Benefits Manual, Section 3.1.7, page 58 (2004) C.F.R. 3.4(c) (1979) U.S.C.S. 101, et. seq U.S.C.S. 101(3), 38 C.F.R. 3.1(j) (2006). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 25

30 and the veteran were married at least one year prior to the death of the veteran, 82 continuously lived together, 83 and the widow has not remarried since the death of the veteran. 84 The last requirement of the widow not having remarried after the death of the veteran has changed a number of times which has created three different classifications of widows who may be entitled to death benefits. The three classifications are based on when the marriage occurred, when the death occurred, the age of the widow if she remarries, if the remarriage ends due to death or divorce, etc. It is essential to pay particular attention to the dates and details of widow s subsequent marriages. Once it is established that the claimant is a qualified family member, the claimant can receive death indemnity compensation, accrued benefits, or pension. 3. Death indemnity compensation is a monthly benefit paid to eligible survivors of a: a. military service member who died while on active duty, OR b. veteran whose death resulted from a service-related injury or disease, OR c. veteran whose death resulted from a non service-related injury or disease, and who was receiving, or was entitled to receive, VA U.S.C.S. 1102(2); 38 C.F.R (2000) U.S.C.S. 101(3); 38 C.F.R. 3.50(b)(1) (1997). 84 The law with regard to remarriage has changed many times, creating three different categories of remarried surviving spouses who may be entitled to DIC. See Veterans Benefits Manual, Section , page 516 (2004). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 26

31 Compensation for service-connected disability that was rated as totally disabling for at least 10 years immediately before death, OR d. since the veterans release from active duty and for at least five years immediately preceding death, OR e. for at least one year before death if the veteran was a former prisoner of war who died after September 30, There is no time requirement as to when a claim for DIC must be filed. However, there are advantages of filing the claim within one year of the veteran s death. 4. Accrued Benefits. 86 Where a veteran, who was entitled at death under existing ratings or decisions OR those based on evidence in the file at the date of death AND due and unpaid, the VA shall upon the death of such individual pay qualified recipients in order of priority, which include the surviving spouse, veteran s dependent children,..., or in all other cases, as may be necessary to reimburse the person who bore the expense of the veteran s last sickness and burial. 87 The leading case which created much controversy was Bonny v. Principi, (CAVC No , 12/10/02). Subsequent to this case being decided, the laws were changed to reflect the intent of Congress. See Federal Register Vol. 69, No. 190, page 59072, October 1, 2004, and 38 U.S.C.S for the history and subsequent law changes U.S.C.S. 5121; 38 C.F.R (a) (2006). 87 Id. VA Benefits Accreditation Course by Victoria Collier, Attorney Page 27

32 The claimant must file an accrued benefits claim within one year of the death of the individual whose pending claim is the basis of the accrued claim. 88 The form necessary to file for accrued benefits is VA Form Death Pension. Death Pension is a needs based benefit paid to a surviving spouse who has not remarried since the death of the veteran, or an unmarried child of a deceased wartime veteran. 89 Thus, eligibility is based on the claimant s income and net worth. There is no time requirement as to when an application must be filed. Moreover, the surviving spouse can be of any age to receive this benefit. A more detailed description of this benefit is found in the next section on non-service connected disabilities. B. Non-Service Connected Benefits There is one type of financial benefit that most veterans know nothing about. Yet, it is the primary source of income that elder care attorneys can help them receive. Veterans or widow(er)s of veterans are entitled to an Improved Pension which will provide a Special Monthly Pension (SMP) to offset the cost of necessary health care. The three types of SMP available are called Low Income Pension, Housebound benefits and Aid and Attendance benefits. The VA offered two previous versions of this program, called Old- Law Pension (veterans receiving pension benefits prior to July 1, 1960) and Section 306 Pension (veterans receiving pension benefits between July 1, U.S.C.S. 5121(c); 38 C.F.R (c) (2006) VA Benefits Accreditation Course by Victoria Collier, Attorney Page 28

33 1960 and December 31, 1978). A person must meet certain criteria to be eligible for the different pension benefit options. 1. Basic Eligibility Criteria for Improved Pension, Housebound and Aid and Attendance All of the following criteria must be met before a veteran or widow(er) of a veteran can receive Improved Pension benefits: a. The veteran must have served at least 90 days of active duty service, one day of which must have been during a war-time period 90 ; In general, wartime is: World War I World War II - Dec. 7, Dec. 31, 1946 Korean War - June 27, Jan. 31, 1955 Vietnam Conflict - Aug. 5, May 7, 1975 Gulf War - August 2, 1990 through date to be set by law by Presidential Proclamation b. the veteran must have received a discharge other than dishonorable; c. the claimant must have limited income 91 and assets available 92 ; d. the claimant must have a permanent and total disability at the time of application 93 ; U.S.C.S. 1521(j) U.S.C.S U.S.C.S U.S.C.S 1521(a). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 29

34 e. the disability was caused without willful misconduct of the claimant 94 ; and f. The veteran or widow signs an application and provides the application to the Veteran s Administration. 2. Pension Types A. Low Income Pension Low income pension is the VA s equivalent of SSI. The claimant must meet all the criteria above. The permissible income limits for Low Income Pension are detailed in the box below: 95 Permissible family income limits for 2008 to receive Low Income Pension: (1) Veteran with no dependents $931/month; $11,181/year (2) Veteran with one dependent $1,220/month; $14,643/year (3) Widow(er) with no dependents $624/month; $7,498/year B. Housebound Benefits Housebound benefits are available to a veteran or widow(er) of a veteran who is determined to be disabled and is essentially confined to the home. 96 The two ways to prove entitlement include: (1) a single permanent disability rated as 100% disabling under the VA schedule and confined to the dwelling 97, or U.S.C.S 1502(a). 95 For 2008 rates, see U.S.C.S 1502(c) U.S.C.S 1521(e). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 30

35 (2) a 100% disability with another 60% disability, regardless of whether or not the person is confined to the dwelling. 98 A disability rating is not required for people aged 65 or older. People aged 65 or older are presumed to be disabled; however, the VA will require a physician s affidavit regarding the claimant s condition. 99 The maximum permissible income limits for Housebound Pension benefits are detailed in the box below: 100 Permissible family income limits for 2008 to receive housebound benefits are: (1) Housebound veteran with no dependents $1,138/month; $13,664/year (2) Housebound veteran with one dependent $1,427/month; $16,740/year (3) Housebound widow(er) without dependents $763/month; $9,164/year C. Aid & Attendance Aid and Attendance benefits are available to a veteran or widow(er) of a veteran who meets one of the following conditions: a. Claimant is blind; b. Claimant is living in a nursing home; OR c. Claimant is unable to: i. dress/undress or keep self clean and presentable; U.S.C.S 1502(c). 99 See For 2008 rates, see VA Benefits Accreditation Course by Victoria Collier, Attorney Page 31

36 ii. unable to attend the wants of nature; OR iii. has a physical or mental incapacity that requires assistance on a regular basis to protect Claimant from daily environmental hazards. 101 The permissible maximum income limits are detailed in the box below: 102 The permissible family income limits for 2008 to receive aid and attendance benefits are: (1) Veteran with no dependents $1,554/month; $18,654/year (2) Veteran with one dependent $1,842/month; $22,113/year (3) Widow(er) with no dependents $998/month; $11,985/year 3. Income Limits With regard to income requirements, the applicant will be denied benefits if the veteran s or widow(er) s countable income exceeds the maximum permissible family income limits. 103 Countable income is all income attributable to the applicant, the applicant s spouse, and the applicant s dependent children. 104 Although most veterans have income that exceeds the permissible family income limits, unreimbursed medical expenses paid by the claimant may be used to reduce the claimant s countable income U.S.C.S. 1502(b). 102 For 2008 rates, see M21-1MR, Part V, Subpart i, Chapter 3, Section A, 1.a U.S.C.S. 1521(c),(h) U.S.C.S VA Benefits Accreditation Course by Victoria Collier, Attorney Page 32

37 Unreimbursed medical expenses that may reduce income include: doctor s fees, dentist s fees, prescription glasses, Medicare premium deductions and copayments, prescription medications, health insurance premiums, transportation to physician offices, therapy, and funeral expenses. The most beneficial unreimbursed expenses that may reduce countable income are the costs of home health care, assisted living facilities, or skilled nursing homes. 4. Asset Requirements A. Standard The VA considers the net worth of the individual seeking benefits, excluding the value of the person s home, furnishings, and car. The standard as to whether a person will be eligible for benefits is whether the person has sufficient means to pay for their own care. 106 The net worth of both the veteran and the veteran s spouse are considered when determining eligibility. 107 B. Presumption of Sufficient Means No specific dollar amount can be designated as excessive net worth. What constitutes excessive net worth is a question of fact for resolution after considering the facts and circumstances in each case. A number of variables must be taken into consideration when making a net worth determination. Factors to consider include: 1.income from other source, 106 M21-1MR, Part V, Subpart i, Chapter 3, Section A, 1.d. 107 M21-1MR, Part V, Subpart iii, Chapter 1, Section J, 68c. VA Benefits Accreditation Course by Victoria Collier, Attorney Page 33

38 2. family expenses, 3. claimant s life expectancy, and 4. convertibility into cash of the assets involved. 108 A commonly used measure, and an amount specifically listed in the M21-1, is to $80,000 or less in assets, whether married or single. 109 This figure used to be $50,000, and some advisors are still using the more conservative figure. C. Age Analysis The VA has begun instructing caseworkers to perform an age analysis to determine financial need. Due to the age analysis, a person who is 98 years of age who has $75,000 may not be eligible; whereas, a person who is 78 years of age who has $75,000 may be considered eligible. 110 Assets that are counted toward the sufficient means fluid figure of $80,000 include bank accounts, certificates of deposit, money market accounts, investment accounts, annuities, retirement accounts, life insurance cash surrender values, etc. 108 M21-1MR, Part V, Subpart iii, Chapter 1, Section J, 70a. 109 M21-1MR, Part V, Subpart i, Chapter 3, Section A, 4.c.; M21-1MR, Part V, Subpart iii, Chapter 1, Section J, 70 b-c. 110 M21-1MR, Part V, Subpart iii, Chapter 1, Section J, 70a.; M21-1MR, Part V, Subpart iii, Chapter 1, Section J, 72a. VA Benefits Accreditation Course by Victoria Collier, Attorney Page 34

39 VIII. Application Process To file for VA Improved Pension benefits, an applicant must present an application to the Veterans Affairs Office. Applications are now available online; however, the supporting documentation must be sent separately to the VA. Each state has a Regional Office and satellite service offices. For information on the different offices, go to the websites, Helpful Tip The VA applicant must personally sign the form. The VA does not and will not recognize a traditional power of attorney. 2. Helpful Tip The VA does have their own form wherein a person can be designated as representative agent for the VA applicant. If this form is completed and signed by the VA applicant, the VA will discuss the application with only the designated representative. The form is a (or 21-22a for lawyers to act as representative). The VA will recognize only one agent at a time for a specific issue. 3. Planning Tip: Apply for A&A When applying for Improved Pension benefits, either Housebound or Aid and Attendance, be aware that Aid and Attendance provides a greater income benefit to the eligible applicant; however, the standards of qualification are higher. VA Benefits Accreditation Course by Victoria Collier, Attorney Page 35

40 4. Planning Tip: Evidence of Disability Although a person is presumed to need Aid and Attendance if living in an assisted living facility, Form VSO-3 is a document that a primary physician completes outlining the applicant s current condition and health care needs. If a person lives at home and is homebound, that person will need the VSO-3 form completed by their physician to bolster the applicant s claim for benefits. A physician may submit evidence on letterhead instead of the VSO-3. Submitting comprehensive medical records are not necessary. 5. Planning Tip: Supporting Documentation Applications It is imperative that the applicant obtain copies of certain information to present to the VA along with their application. Documents that should always be included are: Income statements, Social Security New Benefit Amount Letters, pension statements, copies of pay checks/stubs, all other verification of any other type of income (interest on securities, rental income, etc.). Latest bank statements from all financial institutions Retirement account statements Life insurance policies marriage licenses, divorce decrees, and/or death certificates for all prior and current spouses of the applicant and the dependent spouse VA Benefits Accreditation Course by Victoria Collier, Attorney Page 36

41 printout from the pharmacy for all medication of applicant and spouse (and other household members) all other medical expenses paid on behalf of applicant and spouse, including the fees for home health care, assisted living, and skilled nursing facilities Military discharge papers (DD 214) birth certificate 6. Planning Tip: Original Documents The VA will want to see the original document for certain verification. These items include: the birth certificates, Military Discharge papers, and marriage licenses. If these documents are mailed to the VA, they will likely never be returned. Thus, it is better practice to hand deliver the application with the documents to the nearest VA office. When there, have copies of the originals so the veteran claims adjuster can date stamp and verify the copies after having seen the originals. Then take the originals back with you. This can reduce the application processing time by several months. 7. Planning Tip: Terminal or Hospice Claimants When a claimant has been deemed as terminally ill or is receiving hospice services, the VA is supposed to expedite the claim for benefits. Include with the application, or anytime during the application process prior to an award for benefits, a letter from the attending physician ordering hospice and a letter VA Benefits Accreditation Course by Victoria Collier, Attorney Page 37

42 from the hospice company confirming when the claimant began receiving hospice services. IX. Appealing a VA Decision After the applicant has submitted for review and approval, it may take several months to receive an award letter. The VA will either approve the claim for full VA benefits, partial benefits, or deny the claim. If you feel the applicant was not awarded the appropriate amount of benefits, the applicant can appeal. A. Regional Office Request for Reconsideration and Notice of Disagreement After the Regional Office issues a determination, the applicant can request reconsideration of the decision. To do so, the claimant should provide any evidence the VA does not have in order to re-adjudicate the claim. For instance, if the veteran was awarded with pension, but the monthly amount is not as high as you think it should be and you have discovered that the VA did not deduct all un-reimbursed medical expenses, you can submit the medical expenses with a request for reconsideration. If this is not successful, the applicant can request an evidentiary hearing at the Regional Office in front of a hearing office. 111 To do so, the applicant files a C.F.R (c) (2001), (a)(1996). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 38

43 notice of disagreement to the Regional Office, 112 which is typically in letter form. 113 The notice of disagreement must be filed within one year from the date the decision was mailed (date on the letter). 114 After receipt of the notice of disagreement, the VA will issue a statement of the case. The statement of the case is the VA s official notice detailing the basis for its decision. The statement of the case should include a summary of all evidence the VA received and considered, applicable laws and regulations, and the reason for the determination. The applicant must file a substantive appeal, to the Regional Office, within 60 days of when the VA mailed the statement of the case or within one year of when the claimant received the VA s original decision (date of letter), whichever is later. 115 The substantive appeal, also known as the formal appeal, is filed on VA Form 9. At this level, most veterans are represented by service organizations (i.e. PVA, DAV, VFW). A recent law change now allows attorneys to represent appellants at this level and to receive payment for services after the Notice of Disagreement has been filed with the VA. B. Board of Veteran s Appeals (BVA) U.S.C.S. 7105; 38 C.F.R (1992) C.F.R (1992) U.S.C.S. 7105; 38 C.F.R (a) (2008) U.S.C.S. 7105(d)(3); 38 C.F.R (b) (2008). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 39

44 If the appeal to the Regional Office is not successful (and it usually isn t), the applicant can appeal to the Board of Veteran s Appeals (BVA). The Board of Veterans Appeals is the highest tier in the VA adjudication system. The rules of practice before the BVA are found at 38 C.F.R. part 20. The BVA has jurisdiction to review all questions of fact and law that are on appeal of a claim filed by a veteran or a dependent or survivor of the veteran. 116 has jurisdiction to hear matters concerning attorneys fees. 117 The BVA also The review is de novo and new evidence can be presented. 118 C. U.S. Court of Appeals for Veterans Claims (CAVC) If the applicant is still not satisfied with the result of the adjudication by the BVA, and has received a final BVA decision, the applicant can appeal to the U.S. Court of Appeals for Veterans Claims (CAVC). The CAVC has exclusive jurisdiction to review the decisions of the BVA. 119 The notice of appeal to the CAVC must be filed within 120 days from the date of the BVA decision, 120 and must comply with Rule 3(c) of the Court Rules of Practice and Procedure, which can be found at: Very few U.S.C.S. 7104(a); 38 C.F.R (2001) U.S.C.S U.S.C.S. 7104(a) U.S.C.S. 7252(a) U.S.C.S. 7266(a). VA Benefits Accreditation Course by Victoria Collier, Attorney Page 40

45 cases are taken to the CAVC. The CAVC review is of the administrative record created at the BVA, therefore, no new evidence may be presented. At this level, the attorney is mainly drafting briefs and motions. There is a relatively high success rate at the CAVC level. D. United States Court of Appeals for the Federal Circuithttp:// The United States Court of Appeals for the Federal Circuit was established under Article III of the Constitution on October 1, The court was formed by the merger of the United States Court of Customs and Patent Appeals and the appellate division of the United States Court of Claims. 121 The Federal Circuit has nationwide jurisdiction in a variety of subjects, which include veterans benefits. To file an appeal with the CAFC, the appellant must file Form 4, found at The appeal must be filed with the district clerk within 30 days after the judgment or order appealed from is entered (actually received in their office, not just postmarked). 122 Frequently, VA cases decided by the Federal Circuit become precedent for future VA claims, cases, and appeals. To research recently published opinions, go to: Look at the column of origin from the CAVC. Current cases will have the Veteran s name vs. Peake Federal Circuit, Rule 4. VA Benefits Accreditation Course by Victoria Collier, Attorney Page 41

46 X. Resources 1. Veterans Benefits Manual, published by LexisNexis 2. M21-1 and M21-MR, Adjudication Manual; published by LexisNexis, and available on-line at VisPro, created by Veterans Information Services, Inc. And co-authored by Victoria L. Collier, Attorney; go to 4. General Counsel Opinions; also available by LexisNexis; go to 5. Court of Appeals for Veterans Claims Bar Association: : 6. National Organization of Veterans Advocates (NOVA): 7. Association of VA Pension Planners (AVAPP) 8. National Veterans Legal Services Program: 9. VA blogs and listservs A. B. Listserv@ C Other Helpful Resources U. S. Court of Appeals for Veterans Claims : U. S. Court of Appeals for the Federal Circuit : Department of Veterans Affairs: Board of Veterans Appeals : VA Forms: VA Benefits Accreditation Course by Victoria Collier, Attorney Page 42

47 X. CONCLUSION Veterans Benefits are becoming more important as an available resource to veterans who have either honorably served their country during a war time period or who have become disabled due to their service. Traditionally, Social Security Disability attorneys and attorneys who worked specifically with service-connected disabled veterans were the only lawyers familiar with veteran laws. However, with the passage of the Deficit Reduction Act of 2005, Medicaid benefits are becoming increasingly difficult to obtain and traditional planning opportunities employed by Elder Law Attorneys are diminishing. Thus, a surge of attorneys, assisted living facilities, private individuals, and non-profit organizations have begun advising non-service connected disabled veterans who have served in the military during a war time period about Pension with aid and attendance. In response to these actions, as well as others, the VA has recently changed the laws regarding who can assist VA claimants and when an agent can charge for such services. Currently, ONLY ACCREDITED agents, including attorneys, can assist a claimant with the preparation, presentation, and prosecution of a claim before the VA. Accredited agents must complete required continuing education requirements. And, lastly, fees cannot be charged until AFTER a Notice of Disagreement has been filed. VA Benefits Accreditation Course by Victoria Collier, Attorney Page 43