Colorado Bar Association Elder Law Section December 20, 2018

Transcription

1 Colorado Bar Association Elder Law Section December 20, 2018

2 The Law Offices of Michael L. Shea, LLC PO Box Aurora, CO

3 University of Denver, Sturm College of Law Pro Bono project using 2L and 3L students Three professors, all accredited with VA Office at 1247 Santa Fe

4 Accreditation and representation VA form 21a VA form 21-22a Veteran Population Basic Structure of the VA

5 Who is a Veteran for VA purposes? VA Compensation For the Veteran DIC for survivors VA Pension For the Veteran For Survivors

6 Aid and Attendance For Service Connected Compensation For VA Pensioners VA Medical Benefits VA Death Benefits Burial plot in National Cemetery with military honors Headstones, markers Flag

7 Title 38 United States Code 38 Code of Federal Regulations M21-1MR- VA adjudications Manual Veterans Benefits Manual, Barton F. Stichman, Ronald B. Abrams, Louis J. George, editors, National Veterans Legal Services Project, LexisNexis, 2014

8 New rules effective June 23, 2008 VA form 21a Submit to VA General Counsel CLE 3 hour course within one year after accreditation Another 3 hour course within 3 years after accreditation 3 hour course every two years thereafter

9 Must submit VA 21-22a to VARO before the VA will talk to you or release Veteran s records Must submit fee agreement to VARO and to OGC if you want to get paid If you don t want to get accredited, engage a VA accredited attorney to assist you

10 2012 US Census 12.4 million Veterans >65 VA estimates 692,000 WWII living Veterans by 9/30/2016 No living WWII Veterans by million Korean War Era Veterans 7.4 million living Vietnam War Era Veterans Unknown number of Gulf War Veterans >65

11 Veterans Benefits Administration (VBA) Veterans Health Administration (VHA) National Cemetery Administration (NCA)

12 Eligibility for benefits Must be a veteran Must have served on active duty National Guard and Reserves are not active duty for VA purposes and aren t considered veterans unless they have been activated under Title 10 Honorable or General under honorable conditions discharge Other than honorable discharges create problems Service-connected injury must have been incurred in active military service or aggravated by military service

13 Must have a current diagnosed illness or injury Must show the nexus between the illness or injury and service e.g. shrapnel wounds incurred in Vietnam create a current medical problem with the leg Service in a combat zone results in a current diagnosis of PTSD

14 Many Veterans of World War II and Vietnam have never filed a claim for benefits Some Veterans filed a claim and were denied and never followed up after the denial Research your clients medical history to determine whether a claim is appropriate, ie. has the condition worsened? See claim form attached to the handout

15 Your client may have been going to a VA hospital or clinic for care for a number of years but wonders why he isn t getting monetary benefits The hospital won t send information to the benefits section until told to by the Veteran The benefits section doesn t know that the Veteran exists until a claim is filed

16 Presumptive service-connection for certain periods of service you don t have to show the nexus between injury and service: for example Korea cold injuries Vietnam Agent Orange illnesses Gulf War Undiagnosed illnesses, PTSD, TBI Due to the increased use of National Guard and Reserves, there are many over 65 Veterans of the Gulf War

17 If the Veteran has one of the diagnosed illnesses listed below, and he had boots on the ground in Vietnam, he is presumptively service-connected. Diabetes Mellitus Diabetic Neuropathy as secondary to the DMII Ischemic heart disease Hodgkins disease Prostate cancer Parkinson s disease Respiratory cancers (includes lung cancer)

18 There are a number of other diseases that are presumptive for exposure to AO. See 38 CFR If you discover that the Veteran has one of the listed diseases and a claim has never been filed, get it filed immediately. If the Veteran has an active claim for an AO exposure, look to see whether the disease has progressed

19 Even if a Veteran has not been exposed to AO, he may have a compensable injury Look at the Veteran s injuries/illnesses and then look at the Veteran s duties and exposures during service, e.g. infantry (back and leg); aviation (hearing and back) Exposure to TCE, benzene, jet fuel exhaust and noise may result in a SC benefit

20 Eligibility Generally requires a single disability rated at 100% SC, or Housebound Multiple disabilities, such as Parkinson s or DMII that result in a combined rating of 100% and requires A&A Need for A&A, i.e. help with activities of daily living Higher levels of A&A may be payable when higher level of care is called for

21 Veteran may be entitled to increased compensation for Aid and Attendance if his or her spouse is in need of A&A. It s not much: $76.00 per month if the Veteran is rated at 50% The rates range from $46.00 per month for a 30% disabled Veteran to $ for a 100% disabled Veteran

22 Eligibility Single SC disability evaluated as totally disabling (100%), and Additional SC disability rated at 60% or more TDIU may satisfy requirement of totally disabling disability Permanently housebound Veteran is substantially confined to his or her dwelling and immediate premises, or if institutionalized, to the ward or clinical area and condition will continue through lifetime

23 Total Disability Individually Unemployable (TDIU) Age is not a factor One SC disability rated at 60%, or Two or more SC disabilities with at least one at 40% and a total rating of 70% Doctor s statement that Veteran is unable to maintain substantially gainful employment Pays at the 100% rate regardless of the underlying rating

24 Additional amount if Veteran is married and or has dependent children and has a service connected disability rated at 30% or higher Problem area: Veteran may be married but VA is only paying at the single rate Complete the form for dependent information Automobile allowance of up to $19,817 if the Veteran has a service connected injury that involves the loss of or loss of use of one or both hands or feet or permanent impairment of vision to a certain degree

25 Eligibility Criteria Veteran with at least 90 days of active duty and one day during a period of war Service on or after 9/8/ months of continuous active or full period for which veteran was called or ordered to active duty At least one day of wartime service which resulted in a discharge for a service-connected disability Discharged under other than dishonorable conditions i.e. Honorable or General discharge

26 100% disabled Receiving SSI payments, or Over the age of 65 (I guess all of us over that age are considered 100% disabled)

27 Financial Criteria New rules as of October, 2017 Net worth = $127,061 (Community Resource Limit for Medicaid) Annual household income for 2018 must be less than $13,855 (MAPR) for the Veteran and spouse Unreimbursed medical expenses in excess of 5% of the Maximum Annual Pension Rate (MAPR) can reduce countable income

28 Transfers to an irrevocable trust to reduce assets for net worth purposes must be made at least three years prior to filing for pension Watch for a conflict between Medicaid eligibility and VA pension eligibility Certain medical services must be performed by qualified medical personnel if you want to be able to deduct them from family income

29 What income is countable? Essentially everything Earnings Interest and dividend payments Retirement payments, including social security and SSDI Net income from a business or farming One time cash payments Spouse s income How the VA checks Cross references with social security and IRS

30 Welfare benefits, including SSI Maintenance provided by a relative, friend or charitable organization Medical expenses in excess of 5% of MAPR ($632 for single veteran $828 for veteran and spouse) includes payments made to a nursing home

31 The Veteran has to qualify for pension before he is eligible for A&A If large estate, reduce with an irrevocable trust Must be accomplished before the application is filed Reduce income through unreimbursed medical expenses Show a requirement for A&A, e.g. nursing home

32 Qualifying categories Spouse Surviving spouse Child

33 Accrued benefits amounts owed to the veteran before he died, e.g. arrearages from a pending or appealed claim DIC payments for service-connection Spina Bifida claims irrespective of character of discharge for Vietnam veteran

34 Monthly payments made to surviving spouse, surviving child or surviving parent if: Death was from a service-connected illness/injury, or Veteran had a totally disabling service-connected disability for the 10 years prior to death, or Veteran was receiving or should have been receiving total disability payments from the date of discharge from active duty to the date of death at least five years later.

35 Similar to the application for non serviceconnected disability pension but with a lower amount paid to survivor ($707 for a surviving spouse without a dependent child) Spouse must have been married to veteran for at least one year or had a child with the veteran if married for less than one year Similar analysis for IVAP and MAPR but lower amounts ($8,484 for surviving spouse alone

36 Eligibility and Enrollment VA form 1010EZ Veteran can go to the VA hospital and enroll Priority groups 1-8 Women Veterans Military Sexual Trauma Co-payments for groups 2-8

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