Veteran’s Aid and Attendance

Recently, the U.S. Department of Veterans Affairs announced big changes to the VA Aid and Attendance Benefit. In its final rule published on September 18, 2018, the VA added a look back period for asset transfers, established net worth limits, and added new medical expense deduction limitations.

Here are the highlights of the new rules:

• There will be a 36-month look-back period that penalizes a veteran (or a surviving spouse) for every $2,230.00 that is given away or transferred into a trust or annuity.
• Net worth will now include all assets plus annual gross income (minus unreimbursed, recurring medical expenses) and will be capped at the current CRSA, or community spousal resource allowance, (which is $127,061 for 2019).

These new rules make accessing these needed benefits even more difficult for our veterans and their families. The changes went into effect on October 18, 2018.  If you have questions about these new rules or need to set up an appointment with one of Hurley Elder Care Law’s Certified Elder Law Attorneys, please call us at (404) 843-0121.

Filing a claim for VA disability benefits is a complicated process, even when the claims seem straightforward. Even though the VA makes basic claims forms available, we highly recommend that anyone making a benefit claim obtain assistance and guidance from an accredited attorney, claims agent or veterans service officer. The process and forms can be confusing and any information omitted or completed incorrectly can delay the process by 3-5 weeks.

That depends. 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. Every person accredited by the VA receives credentials from the General Counsel. Ask to see their credentials or search for them on the General Counsels website. If they cannot provide their official VA credentials or you cannot find their name listed on the General Counsel’s website, avoid them at all cost! They are in acting violation of federal law.

Perhaps. Current federal law only regulates assistance after a person becomes a claimant for VA benefits (38 CFR 14.627(h).) A person becomes a claimant under federal law when they actually begin the process of preparing a claim or when they express and intent to prepare a claim. Once a person becomes a claimant, only someone accredited by the VA can assist or even offer advice on a claim. Attorneys may offer general assistance with VA questions, including general issues on the law and potential eligibility in the form of a Pre-Filing Consultation. Since these consultations involve rendering a legal opinion, only VA-accredited attorneys may provide Pre-Filing Consultations, otherwise one may be guilty of practicing law without a license.

No, it is not legal. If a financial planner is providing you with advice regarding your estate in regards to filing for a VA disability benefit, obviously intent to pursue the benefit has already been expressed. Hence, the financial planner is providing advice on a claim which is prohibited. Also, a VA-accredited attorney may only be assisted by a legal intern, a law student or staff under the attorney’s direct, physical supervision (38 CFR 14.629.) A financial planner is obviously none of these and is therefore not an acceptable legal advisor.

Generally speaking, No. The definition of “Surviving Spouse” is that of a spouse who was married to the Veteran at the time of his or her death and has not remarried. However, there is an exception to this rule based on when the second marriage occurred and when it was terminated. The rules are also different in compensation cases.

Spouses separated for the reason of “marital discord” are still eligible as long as they did not divorce.

Merchant Marine service does count for VA disability benefits as long as these additional issues are present: (i) the merchant sailor or officer must have served at sea for at least 90 days and (ii) the service must have been between December 7, 1941 and August 15, 1945. The U.S. Coast Guard is the guardian of these service records.

Yes. However, the proper thing to do is to use your financial assistance to pay direct medical or living bills. Do not transfer the money into the claimant’s name. If you do, technically, it becomes income again and will be counted against the claimant thus reducing the benefit dollar-for-dollar. By paying the bill directly (like to an assistance living facility, for example), the gift falls under the definition of “private charity“ (38 CFR 3.272(b)) and is not countable as income.

*When does my claim become effective?*

The Start Date of VA Disability Claims is 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 start date. This is called the retroactive payment. Subsequently, the VA will direct deposit your award or mail you a paper check if you have no banking account on the first of every month for the preceding month.

Yes. In answering this question, we assume that (1) a “Pension benefit client” means a veteran not currently receiving VA pension but one who has expressed intent to file for such benefit, and (2) that the advice provided includes those acts in making the claim ready for filing (including advice on financial matters), but not the actual filing of the claim. Here, the advice constitutes preparation of a claim and therefore requires accreditation. This is because the advice is given in regards to a specific application for benefits rather than general advice not related to a specific claim. The difference is significant in that the purpose of VA’s accreditation program is to ensure that claimants for VA benefits receive qualified assistance in preparing and presenting their claims.

No. Absolutely not! In fact the Non-Service Connected Disability Pension (since January 1, 1976 called the “Improved Pension” as opposed to the Old Law Pension or Section 306 Pension), is by far the smaller of the two VA administered Disability Programs. There are over 10 million Veterans on the Service Connected Compensation Program and only about 375,000 Veterans on Pension! Service Connected Compensation is harder to prove legally but it can provide over twice the amount of monetary benefit based on total disability (the inability to hold or seek gainful employment due to the disability.)

In order to meet the income requirements for maximum benefit for Aid & Attendance, the applicant must have recurring monthly unreimbursed medical expenses that exceed their monthly income. In simpler terms, you have to be spending more for your care than you receive in income prior to applying for the benefit. This may be met through home care expenses, assisted living community fees and skilled nursing facility fees.