A Primer on Compensation for Veterans and Their Survivors. By Dana E. Bookbinder

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1 A Primer on Compensation for Veterans and Their Survivors By Dana E. Bookbinder Of the more than 20 million veterans living in the U.S., many are unaware of the variety of benefit programs offered to veterans and their spouses and dependents. This is no accident, however. The Department of Veterans Affairs, while posting helpful summaries on its website, does not go out of its way to guide would-be recipients toward its programs. The result is that veterans have to seek out their own advisors and advocates to claim their due benefits. Many benefit claims currently take about a year to process, even when the application is straightforward. Other types of benefit claims are often rejected by the Veterans Administration and must be argued to achieve an approval. I recently had the pleasure of discussing VA benefits with William J. Devereaux, U.S. Army Vietnam veteran from the 101st Airborne Division and an accredited representative of the National Association of County Veterans Service Officers. Devereaux, who was deployed during the Tet Offensive in Vietnam, states, "The VA started as an advocate for veterans. They are no longer an advocate." Veterans' claims for payments can be divided into two main categories disability compensation claims and nonservice-connected pension claims. Compensation for Veterans With Service-Connected Disabilities Disability claims seek monthly nontaxable compensation based on a service-connected disability that is given a rating according to severity by the VA. The rating can qualify the veteran for various levels of benefits and compensation amounts. According to Devereaux, the average claim for disability benefits is 12 to 15 months. He says, "They low-ball everybody."

2 While veterans would be well advised to appeal a majority of the disability ratings, the VA has been approving certain kinds of claims more easily over the past few years. The VA is aware that each war triggered a high propensity for certain disabilities. For instance, the Vietnam War is causally linked to cancer, diabetes, heart disease, ALS or Parkinsons through Agent Orange exposure. If a veteran served on Vietnamese land or contiguous rivers and later suffered one of the ailments linked to service during this war, the VA will automatically recognize that the disability is service-connected, which will entitle the veteran to a monthly benefit payment. In some cases, wartime veterans filed claims for disability compensation years ago and were denied. If the disability on which the claim was made was later recognized as one of the presumptive serviceconnected claims, then the Veterans Administration will award a monthly payment. These claims are referred to as "Nehmer" claims. Because the Persian Gulf War and the War in Iraq are so new, the VA is in the process of developing its list of related disabilities that will one day be automatically recognized and compensated as serviceconnected. Widows and dependents of deceased veterans and parents who had been supported by a veteran now deceased may also be entitled to compensation based on the veteran's service record. This is known as DIC (Dependent Indemnity Compensation), which is nontaxable income. Special monthly compensation is also available for spouses, widows, children and parents of veterans according to the veteran's disability rating. This benefit typically pays a higher rate, is designed to address certain circumstances, such as a disabled spouse, and is tax-free. Veterans may be unaware that the VA also offers payments toward college costs. Here, the veteran must have a service-connected disability

3 rated at 50 percent or higher, and have a child under age 26 enrolled in college as a full-time student. Persistence will frequently get the veteran a higher disability rating than the VA originally awarded. For instance, if the veteran proves that a disability prohibits getting meaningful employment, the VA can raise the disability rating to 100 percent. The VA looks to medical reports when making decisions based on ratings. The VA may also consider a global assessment function score under the DSM (Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatry Association). Pensions for Disabled Veterans Without Service-Connected Disabilities In addition to compensation based on a service-connected disability, veterans or widows may qualify for a pension that does not hinge on a service-connected disability but does depend upon financial means testing. Income is closely looked at, and all income, including Social Security, pensions, rent and a spouse's income must be reported. The veteran must also be considered disabled and meet requirements relating to military service. Like claims based on disability ratings, these applications take the VA months and months to process. For a nonservice-connected pension, the veteran must have served at least 90 days of active duty (or, according to the Department of Veteran's Affairs website, if enrollment was after Sept. 7, 1980, for 24 consecutive months). At least one day of the active duty must have been during wartime, and the discharge must have been under conditions other than dishonorable. If a veteran is at least 65 years old or is considered permanently disabled and has income less than certain limits which Congress prescribes each year (in 2014, $12,652 for a veterans with no dependents), he may qualify. Certain sources of income are not countable toward eligibility. The VA also reviews the applicant's assets to determine if they are sufficient to support the applicant's costs of care

4 for the rest of his or her life. The VA looks to the applicant's age and calculates a maximum asset level, usually between $50,000 and $80,000. For 2014, the maximum annual pensions are as follows: a veteran with no dependents, $12,652; a veteran with a dependent (i.e., married) can receive up to $16,569 annually. Veterans who are permanently disabled can receive increased amounts under the "housebound" benefit, up to $15,462 annually, or $19,380 if they are married (or have a dependent). Veterans under 65 years of age must have a disability rating of 100 percent and be confined to the home; or have two disabilities, one rated at 100 percent and the other of at least 60 percent and not necessarily be confined. Those over 65 do not have to have a disability rating. The maximum pension amounts are also the maximum income levels for the veteran and his dependents; however, unreimbursed medical expenses may be subtracted from the family's income. Veterans who meet the income, asset and military service requirements and who meet additional disability requirements can receive higher pensions through the Aid and Attendance program. The veteran must be in a long-term care facility or it can be demonstrated that the veteran is unable to care for himself, get dressed, tend to personal hygiene and personal safety or is blind. Maximum pensions for 2014 are as follows: $21,107 for a veteran without dependents and $25,022 with a dependent. The maximum pension amounts are also the maximum income levels for the veteran and his dependents; however, unreimbursed medical expenses may be subtracted from the family's income. Widows and widowers of veterans who meet the requirements outlined above can also qualify for nonservice-connected pension benefits. Maximum annual payments are $8,485 for the pension, $10,371 for housebound benefits, and $13,563 for Aid and Attendance benefits. Survivors with dependents receive greater amounts. Additionally, a spouse of a living veteran who has a disability rating of

5 30 percent or higher is entitled to Aid and Attendance benefits. The VA reduces the amount of the non-service-connected pension payment by the amount of the applicant's adjusted income, taking into account unreimbursed medical expenses over 5 percent of the maximum annual payment amount. The Notice of Disagreement Appeals of VA decisions regarding disability ratings or eligibility for benefits are exceedingly common. To notify the VA of the intent to dispute a decision, the applicant files a "notice of disagreement." The VA then sends back a "statement of the case," which lists the reason for the decision. The applicant can then request an appeal via an in-person conference or teleconference. Rather than going through the typical appeals process, the applicant can also request a fresh look at the application and supporting documents by a decision review officer. Anyone making a claim to or seeking to contact the VA must be extremely persistent, since it is very difficult to receive a call back from the VA. According to Devereaux, the VA does compare financial information against IRS records. In the event of erroneous benefits paid, the recipient must reimburse the VA. However, when the mistake is the other way and benefits that should have been paid were withheld, sometimes not all of the benefits can be paid to the applicant. For instance, if the individual should have been entitled to a real-estate tax abatement or health-care benefits before the eligibility date actually granted, these types of benefits cannot be recovered retroactively. In addition to the benefits outlined above, the VA also provides an annual clothing allowance to veterans that need to wear a prosthetic or use an orthotic. The VA also has an extensive health-care system that includes state-run and federal-run nursing homes. New Jersey's state-run facilities are located in Vineland, Menlo Park and Paramus. In the event

6 that a VA facility cannot provide a particular treatment required for a veteran, the VA will also subsidize the veteran's treatment in a private facility. Based on a veteran's service-connected disability, in some cases, a spouse and dependents can get health-care benefits through CHAMPVA (Civilian Health and Medical Program of the Department of Veterans Affairs). The array of benefits offered to veterans is vast, and getting these benefits requires knowledge of eligibility rules, persistence and navigation through a myriad of forms. Veterans would be well served to establish relationships with claim specialists. According to Devereaux, out of the 2.4 million individuals who served in Vietnam, fewer than 800,000 remain. These men and women, and others who have been enlisted, can and should receive their due benefits, but they may need to be proactive to do it. Bookbinder is an attorney practicing in South Jersey. She is accredited for the preparation, presentation and prosecution of claims for veterans benefits before the Department of Veterans Affairs. Reprinted with permission from the June 16, 2014, issue of the New Jersey Law Journal ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.