For a Deeper Dive on the Aid and Attendance Benefit
VA Aid and Attendance is a “special monthly pension” available to wartime veterans or surviving spouses of wartime veterans. Aid and Attendance is not a stand-alone benefit, but is awarded on top of either the “service” benefit or the “housebound” benefit. The veteran or surviving spouse must first be eligible for the “service” benefit. That requires the basic qualification by the veteran of having served at least 90 days of active military duty, at least one of those days had to be during wartime (as defined by the Veteran’s Administration) Click here for the listing of wartimes. and having received a discharge that was other than dishonorable. Most veterans, of course, received honorable discharges. Additionally, there are many people who served in capacities that were not specifically in the Army, Navy or Air Force who are included when considering VA benefits. Click here for a list of qualifying services. Next the veteran or surviving spouse must have a permanent and total disability or be over 65.
Amazingly enough, the VA rates all veterans over the age of 65 as “permanently and totally” disabled. For veterans under the age of 65, permanent and total disability includes: a veteran who is in a nursing home; rated as disabled by the Social Security Administration; unemployable and reasonably certain to continue so throughout life; or suffering from a disability that makes it impossible for the average person to stay gainfully employed.
Once these initial hurdles have been cleared, the veteran or surviving spouse may additionally be entitled to, the additional Aid and Attendance pension. Please remember that Aid and Attendance is a level of pension and there is no requirement of a service-connected disability.
How much disability is required for a Claimant to receive the VA Aid and Attendance Pension?
The claimant must show that he or she requires the “aid and attendance” of another person in order to perform some of the basic activities of daily living. The medical evidence must be provided by a physician. Additionally, if the claimant resides in a facility, then the facility must also provide a letter stating that the individual resides in the facility because of the need for assistance with the activities of daily living.
The VA defines the need for aid and attendance as:
- Requiring the aid of another person to perform at least two activities of daily living, such as grooming, transferring, eating, bathing, dressing or toileting;
- Being blind or nearly blind; or
- Being a patient in a nursing home.
What are the VA Aid and Attendance Asset and Income Requirements?
There are financial eligibility requirements associated with the qualification for any VA pension, including Aid and Attendance benefits.
A veteran can have no more that $123,600 in total assets (as of October 18, 2018). This amount includes retirement assets but excludes a home and a vehicle.
The VA has instituted a 36-month look back period for assets. This means that if you have given away any assets in the 36 months prior to applying for VA benefits, you may incur a penalty period or be disqualified for VA benefits. Consulting with a Certified Elder Law Attorney can help you determine the best way to qualify given your circumstances, and the quicker you act, the more options you will have.
There is no specified income limit for VA pension benefits. As opposed to just looking at gross income, the VA considers what it refers to as IVAP (income for VA purposes). IVAP is equal to a claimant’s gross income from all sources less countable medical expenses. Click here for a list of possible medical expenses. If a claimant’s IVAP is equal to or greater than the annual benefit amount, the veteran or surviving spouse is not eligible for benefits.
The Application Process
If you meet all the criteria for a service pension you still have to go through the application process. The VA pension application process makes the Medicaid application process look simple. The VA pension application is very long and asks for many pieces of supporting documentation: everything from military discharge papers to bank statements to marriage certificates to divorce decrees to death certificates to proof of the level of disability. Once the actual application is completed and filed with the VA , the process, in general, is painfully slow – on average the process takes six to nine months. However, the benefit is retroactive to the month after the application is submitted. It is very important to have all papers together at the time of application in a “ready to rate” format. Also when dealing with applications, remember that it is illegal for anyone to charge a fee for completing an application.
Before taking action on any specific course, consider that you should have guidance in the following areas:
- Care options available for the veteran and/or spouse
- A review of VA, Medicaid and Medicare and how each may apply to your circumstances
- Specific documents including powers of attorney for property and healthcare matters, wills and trusts
- A plan for the best use of your personal, financial, and family resources
- Analysis of tax consequences for income, capital gains, estate and/or gift taxes
- An analysis of which planning options best fit your circumstances
- A calculation of the actual dollar benefit and/or cost of any idea that is discussed
- The submission of the VA claim form or Medicaid application.
- Beware, some actions taken to qualify for VA benefits may create a penalty period later when you need to qualify for Medicaid!!
VA Aid & Attendance FAQ’s
Did the VA implement a look back period?
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 $126,420 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.
Should I Obtain Help to File a VA Benefit Claim?
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.
My assisted living community referred me to someone who helps Veterans with disability claims. Can I use them to file a claim?
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.
Can someone help me before I file a claim?
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.
My financial planner claims that he can help me with a claim because he uses a VA-accredited attorney to prepare the claim. Is this legal?
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.
Can a remarried Spouse receive Death Pension benefits
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.
What about spouses that were separated at the time of death?
Spouses separated for the reason of “marital discord” are still eligible as long as they did not divorce.
What about Merchant Marine service during Would War II?
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.
Does the VA count any financial assistance or gift I give to my parent as income?
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.
If I work with pension benefit clients and advise clients as to eligibility requirements, but do not file the application for them, do I need to be accredited?
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.
Is Pension the only VA Disability Benefit?
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.)
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