Department Of Veterans Affairs 2 Main Divisions

Transcription

1 Federal Veterans Benefits Anna S. Richardson, Esq. Co-Executive Director January 16, 2018 MCLE/MLRI Department Of Veterans Affairs 2 Main Divisions Veterans Benefits Administration Regional Offices Boston, Providence Pension Management Center Philadelphia Debt Management Center St. Paul National Cemetery Administration Veterans Health Administration VA Hospitals Community Based Outpatient Clinics Separate from Military Healthcare System Lack of communication between them is the norm

2 General Requirements for All VA Benefits Must have Veteran status and qualifying discharge 38 USC 101 Veteran Status = Active military, naval, or air service Qualifying Discharge = Characterized as Other Than Dishonorable to be eligible for VA benefits Types of Discharge based on service record: Honorable General Under Honorable Conditions General Under Other Than Honorable Conditions Bad Conduct Dishonorable Uncharacterized VA Benefits: Monetary payment for a disability caused or aggravated by military service 38 USC 101(16) Requires veteran status and qualifying discharge Intended to replace lost earning capacity Originated post-wwii, tends to focus more heavily on physical disabilities Available regardless of income

3 VA Benefits: Elements of the claim Medical evidence of current disability - VA has an obligation to provide a medical examination if medical opinion is necessary to decide claim and must assist with gathering relevant records from federal agencies Evidence of in-service incurrence or aggravation or appearance of symptoms during or immediately following military service Nexus - Evidence that in-service injury and current disability are linked Disability is not the result of willful misconduct VA Benefits: Three ways to establish service connection: Direct service connection Secondary service connection Presumptive service connection Agent Orange Exposure, ALS, MS, etc. Some disabilities have a presumptive time period so that, if the disability manifests itself within the presumptive period, service connection may be granted. Example if psychosis manifests within two years of military discharge, it may be presumed that the condition arose in service.

4 VA Benefits: Includes aggravation of pre-existing conditions: Cannot claim results of natural progression of pre-existing conditions Service is presumed to aggravate pre-existing conditions unless there is medical evidence to the contrary Relaxed rules for certain claims Combat-related injuries can be established as service-connected by veteran s own account, if the veteran s description is consistent with the terms of his or her service. PTSD claims pending or filed after July 13, 2010 if the claimed stressor is fear of hostile military or terrorist activity, and is consistent with the veteran s service, then the diagnosis of PSTD is sufficient for serviceconnection if a VA doctor confirms the stressor is adequate to support the diagnosis 38 USC 3.304(f) VA Benefits: Award is based on percentage of disability As of 12/1/17 amounts range from $136.24/month (10%) to $2, /month (100%) Additional amounts paid if the veteran has dependents Includes dependent parents, spouse, children, and children who are full-time students Additional Amounts called Special Monthly Compensation are payable for loss of function or loss of use, if service connected generally when a limb or system is damage to the point of no longer being function such as loss of a limb or eye, complete hearing loss, infertility/erectile dysfunction, mastectomy, etc. Temporary ratings at a higher rate are available for periods of rehabilitation/convalescence.

5 VA Benefits: Unemployability - Veteran can receive a rating of total disability and be paid at 100% rate if he or she is rated at least 70% and can show that his or her service-connected disability subjectively makes him or her unemployable. A veteran whose service-connected disability gets worse can file a new claim solely to increase the percentage rating. A new claim for an increased rating is not an appeal and can be filed at any time. Ratings can go up or down! Be careful to make sure the veterans symptoms are documented and objectively have worsened. VA Benefits: How to Apply Complete and submit Form to: DEPARTMENT OF VETERANS AFFAIRS CLAIMS INTAKE CENTER PO BOX 4444 JANESVILLE, WI or Fax to: TOLL FREE: & (Utilized for Foreign Claimants) Visit VA has duty to assist = VA will notify veteran of any additional evidence needed, schedule medical exams, assist with gathering certain records before making a decision. Veteran will receive a written decision granting or denying claim with list of evidence considered and reasons for decision.

6 VA Benefits: Fully Developed Claims Process developed by the VA to improve claims processing times and give more timely results. Claimants: Submit their claim on a specific form that contains language which satisfies the notice requirements of 38 U.S.C. 5103/abbreviates duty to assist. Simultaneously with their claim veterans submit all private medical treatment records, identify any relevant treatment records at a Federal facility, and submit any additional forms or treatment records required under special circumstances that support their specific claim. Certify their claim is ready for processing at the time it is submitted. Forgo additional notice and requests for evidence from the VA. Receive priority claims processing and expedited decisions. VA Benefits: Effective Date of Benefits will be either: Date claim is received by VA Claims Intake Center, or Date the VA receives Notice of Intent to File a Claim, VA Form , provided the complete claim is submitted within one year. Why file a Notice of Intent to File a Claim? Preserves earlier effective date while giving claimant 1 year to gather evidence and submit fully developed claim Average wait time on regular claim = 180+ days Average wait time on fully developed claim = 109 days

7 VA Benefits: Non-Service Connected Pension Monthly Payment for wartime veterans who are over 65 or totally and permanently disabled 38 USC 1521 Requires veteran status and qualifying discharge Needs-based/Means Tested Requires annual income verification Most needs-based programs (SSI, Ch. 115, TAFDC) will not count as income to determine entitlement 38 CFR Most retirement and disability payments (Social Security, SSDI, VA service-connected compensation, private policies) will count as income and offset pension dollar for dollar 38 CFR Medical expenses that exceed $659/year may be deducted from income to determine eligibility Maximum benefit is $1,097 per month for single vet VA Benefits: Non-Service Connected Pension Elements of the claim Total and permanent disability, or over age 65, or on SSDI, or in a nursing home 90 days of active service during period of war as determined by Congress Length of service requirement 38 USC 5303A(b) Before 1980, 90 consecutive days, one day during time of war After 1980, 24 months of active duty or the full term for which the veteran was called to active duty, one day during period of war Financial need Income must be below $1,097 per month for single person Assets cannot be excessive and do not include primary residence, reasonable lot area, and personal effects. Assets over $40k (single) or $80k (couple) require further assessment Irregular or non-recurring income is annualized 38 CFR In-kind Maintenance income 38 CFR 3.272

8 Non-Service Connected Pension Aid & Attendance Benefits Aid & Attendance - An additional benefit available to a veteran who: Is eligible for non-service connected pension, AND Requires the aid of another person in order to perform personal functions required in everyday living, such as bathing, feeding, dressing, attending to the wants of nature, adjusting prosthetic devices, or protecting himself/herself from the hazards of his/her daily environment, OR, Is bedridden, in that his/her disability or disabilities requires that he/she remain in bed apart from any prescribed course of convalescence or treatment, OR, Is a patient in a nursing home due to mental or physical incapacity, OR, Is blind, or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less. Increases the monthly pension to $1,830 Asset Transfers VA revised 38 CFR to now count assets transferred to household members or transferred for less than fair market value, unless veteran relinquishes all rights/control Non-Service Connected Pension Housebound Benefits Additional benefits available to a veteran who: Is eligible for non-service connected pension, AND Has a single permanent disability evaluated as 100-percent disabling AND, due to such disability, he/she is permanently and substantially confined to his/her immediate premises, OR, Has a single permanent disability evaluated as 100-percent disabling AND, another disability, or disabilities, evaluated as 60 percent or more disabling. Increases monthly pension to $1,341 Cannot be received concurrently with Aid & Attendance

9 VA Benefits: Non-Service Connected Pension Cannot receive pension and compensation at the same time VA will automatically pay higher amount unless veteran elects otherwise Veterans with SSDI or other non-va income may be better off taking lower amount in compensation and keeping other income Is not countable income for child support because needs-based How to apply: Complete and submit Form EZ to Department of Veterans Affairs Claims Intake Center Attention: Philadelphia Pension Center P. O. Box 5206 Janesville, WI Fax: Visit Can also file Notice of Intent to file Pension Claim for earlier effective date VA Benefits for Surviving Spouses, Children, and Parents Two forms of benefits are available Compensation (disability based) Pension (needs based) Available to qualifying spouses and children Available to same-sex spouses Not available to spouses who have divorced or remarried Available to minor children Available to children ages 18 to 23 if in school full-time

10 VA Benefits for Surviving Spouses, Children, and Parents Dependency and Indemnity Compensation Compensation program for surviving spouse or dependent parents, of: Veterans who die during service Veterans whose death is the direct result of a service-connected disability Veterans who die of other causes but were 100% service connected disabled for a sustained period of time (10+ years, or since leaving service and 5+ years) Basic benefit - $1,283/month Additional amounts available if dependent children in household VA Benefits for Surviving Spouses, Children, and Parents Non-Service Connected Death Pension - Available to spouses of veterans whose death is not service connected Veteran must have been eligible for pension Surviving spouse must have financial need Basic Benefit - $736/month Aid & Attendance or Housebound Benefits are also available to increase amount Medical expenses may also be deducted if exceed $442/year Spouses are almost always eligible for addition benefits from the state if they receive a VA Death Pension

11 VA Benefits for Surviving Spouses, Children, and Parents How to Apply for DIC and Death Pension Complete and submit VA Form EZ Department of Veterans Affairs Claims Intake Center Attention: Philadelphia Pension Center P. O. Box 5206 Janesville, WI Fax: Visit VA Education Benefits: GI Bill Education benefit for qualifying veterans Comes in many forms. Most recent is the post 9/11 GI Bill for veterans who served after 9/10/01 Requires Honorable discharge and at least 90 days of active duty service, 3 years of service required for full benefit to be payable Can be transferred to a spouse or child if service was after 8/1/09 and veteran elected transferability during service Can be used for accredited colleges, and certain online, vocational, and technical programs

12 VA Education Benefits: GI Bill What does it cover? Pays all in-state tuition and fees for public schools If attending a private school or as an out of state student the maximum tuition benefit effective 2017 is $22, per academic year Includes a separate housing allowance at the rate of the Basic Allowance for Housing for an E-5 with dependents, amount varies based on zip code Includes a separate $1,000 annual allowance for books and supplies Additional $500 relocation benefit available for veterans from rural areas VA Burial Benefits Benefits include: Burial plot in federal or state veterans cemetery Burial allowance for private cemetery, up to $2,000 amounts vary depending on dates of service and whether death was serviceconnected or veteran was hospitalized at VA at time of death Military Funeral Honors at the internment of remains Headstone or grave marker medallion private cemetery may charge a placement fee Presidential Memorial Certificate Apply using VA FORM 530, available at OR call Veteran can apply prior to death using the Pre-Need Eligibility Determination Request available at:

13 VA Benefits: Overpayments Occurs when a veteran receives benefits to which he or she is not entitled such as: Concurrent Receipt of VA Pension and Social Security Benefits or other income exceeding threshold Fugitive Felon Status Failure to remove spouses or dependents upon death, divorce, etc. Can be recovered by offset or termination of future benefits until repaid no offset or termination should occur if the veteran requests a hearing within 30 days Can be waived if veteran can show hardship, error, or that collection would violate equity and good conscience must be requested within 180 days make sure to raise if the veteran gave up another benefit such as Ch. 115 No waiver if the overpayment is the result of fraud, misrepresentation, or bad faith by the veteran/claimant Can be dischargeable in bankruptcy VA Benefits: Appeals/Options for Review of VA decisions Generally, there is a one year appeal deadline from the date of the decision, except for overpayments where deadline is 180 days. The Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act) became law on August 23, 2017 (Pub L ) Gives three options for review: Option 1: De novo review by higher level Regional Office Staff Option 2: A Supplemental Claim Lane - allows submission of additional evidence and further review, also at Regional Office Level Option 3: Board of Veterans Appeals Direct review: No submission of additional evidence or hearing. Evidence submission: May submit additional evidence, but no hearing. Hearing: May submit additional evidence and testify before a Veterans Law Judge.

14 VA Benefits: Appeals/Options for Review of VA decisions To initiate an appeal file a Notice of Disagreement, VA Form within one year of the VA letter notifying the claimant of the decision. VA must provide instructions on how to appeal and the form with the decision. Proof of mailing/faxing is important! A waiver of the time limit for good cause can be requested but the VA almost never grants them. VA will issue a Statement of the Case = more in-depth explanation of legal and factual basis for the decision Claimant has 60 days from receipt of the Statement of the Case to submit a VA Form 9 Formal Appeal. After the VA Form 9 is submitted the claim is transferred to Board of Veterans Appeals. Why appeal? VA estimates 85% to 90% accuracy rate on its website, but the American Legion and other service organizations found errors in 55% of claims. More about VA Benefits To reopen a claim after one year New and Material Evidence required Low standard of proof /any evidence can be considered Benefit of doubt goes to veteran Not taxable Not assignable for most purposes - 38 U.S.C Can be garnished to satisfy a debt to a federal administrative agency (Social Security, IRS) Can be garnished for child support or spousal support payments in certain circumstances.

15 Access to Information VA Release of Information Forms Benefits Authorization to Disclose Personal Information to a Third Party VA Form Request for Consent to Release of Information from Individual s Records VA Form 3288 Medical Records/ Information Request for and Authorization to Release Medical Records - VA Form Representing VA Claimants In order to represent a veteran in a VA benefits claim, a person must be accredited by VA Office of General Counsel or Limit representation to a single claim, or Be part of a recognized Veterans Services Organization See 38 CFR to

16 Contact Information: Boston VA Regional Benefit Office JFK Federal Building 15 New Sudbury St. Boston, MA Anna S. Richardson, Esq. Veterans Legal Services P.O. Box 8457, Boston, MA