Veterans Administration – Linda Knapp

VA BENEFITS

scarletccarter@gmail.com — Fri, 12 Oct 2018 11:47:04 +0000

Q. I heard there are changes to the eligibility for VA pensions and other veterans’ needs based programs. What are the changes and when do they take effect?

A. The amendments have been a long time coming, but I first got to see the final rules that have been adopted around September 17th and the changes take effect on October 15, 2018. The amendments establish new requirements for evaluating net worth and asset transfers for pensions, including what is popularly called Aid and Attendance benefits. The ninety (90) day active duty with one day of war time (not a boot on the ground) service for the veteran did not change and a widow is still entitled to draw if her husband served under the Aid and Attendance program for long term care. The VA considers the later term a misnomer and confusing because a higher aid and attendance rate may apply and be payable under the pension program, parents’ DIC, disability compensation, DIC for surviving spouses and death compensations.

The new rules also clarify which medical expenses may be deductible as net income. Overall the changes are fair to the system and veterans, although one element may adversely affect rural veterans and their widows’ more than urban dwellers.

Net worth is defined as the sum of the claimant’s non-exempt assets and annual income, but the net worth amount was increased to $123,600 for 2018. When calculating the exemption for “the residential lot area” for a veteran’s home, the lot is not to exceed 2 acres or 87,120 sq. feet, unless the additional acreage is not marketable. Many of my rural clients have 5+ acres. The extra acres will be counted at their fair market value for determining net worth unless there are zoning requirements prohibiting smaller lots. While not required by the VA this could force people to sell additional acreage, a vacation home or time share. Real property is counted whether or not for sale. Rent and mortgage payments have never been deductible from net worth.

It has not changed that household items, personal effects and family vehicles are exempt assets when calculating net worth.

The VA does not distinguish between liquid and non-liquid assets. Annuities and trusts that can be liquidated for the benefit of the claimant is now considered as an asset in net worth calculations. If the annuity can’t be liquidated then it doesn’t count as income, only the distributions. RMDs have always been counted as income.

Unreimbursed medical expenses for both the husband and the wife can be deducted from income. The income of certain dependents is countable.

The VA also established a 36 month look-back-period for the transfer of assets and a 5 year maximum penalty period. When the transfer would not have disqualified the claimant there is no penalty. Transfers for less than fair market value would include any transfer, purchase of, or investment that reduces net worth and would not be in the claimant’s financial interest. This could include trusts and annuities. This presumption could be rebutted by clear and convincing evidence of fraud, misrepresentation and unfair business practices related to the sale or marketing of financial services for the purposes of entitlement. Individuals will have the opportunity to return all conveyed assets before filing or within 60 days after being notified by VA of the penalty period with an additional 30 days to notify the VA of the complete or a partial cure. The rule is not retroactive.

A claimant may decrease assets by spending down on items or services for which fair market value is received. Generally receipts are not required, although it might be a good idea.

The VA has more clearly defined “activities of daily living” (ADLs); “custodial care”; and “assisted living, adult day care, and similar facility”. Custodial care is regular assistance with two or more ADLs or supervision because of a mental disorder such that being left alone would be unsafe for the claimant. Medical expenses do not include either assistance with ADLs or meals and lodging. Thus medical expenses are subtracted from countable income and actual payment of medical expenses, including residential care, does reduce net worth. The VA does not deduct future expenses rather it considers projected unreimbursed medical expenses such as monthly residential care payments.

The VA is amending application forms in conjunction with the new final rules.

These financial benefits are tax free and can be over $2000 a month for a homebound elderly veteran or about half this amount for his widow. Funds are paid directly to the veteran or his agent to help with the cost of private in-home care or residential care expenses. If you’d like more information on the new VA pension rules consider attending one of the free classes I’m offering.

Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, VA benefits, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column.

WRITTEN BY LINDA KNAPP
You may reprint this article with my permission by showing the Firm’s name and attaching my contact information. If you wish to cite the article you must give full credit to the author, Attorney Linda Farron Knapp. Nothing in this article creates an attorney-client relationship. When the article was written it was good law, that may not be situation at the time of reprint. We advise you seek competent legal advise based on your own factual situation before relying or acting on any legal material you read online.

MY MOTHER WAS THE WIDOW OF A VETERAN FOR MANY YEARS AND RAISED US CHILDREN ALONE.

scarletccarter@gmail.com — Wed, 23 Sep 2015 15:55:22 +0000

Several years ago she remarried. Is she entitled to any pension assistance now that she needs assisted living?

The pension eligibility criteria for surviving spouses include the following:

(1) Can be any age, whereas a veteran applying must be 65 years or older or 100% disabled;
(2) Must have been married to the veteran for at least one year or had a child with the veteran, if married less than one year.
(3) Must have lived with the veteran throughout the marriage and at the time of death (this does not require physically being in the same location because soldiers and sailors are often on duty in distant locations;
(4) AND TYPICALLY NEVER REMARRIED, however there is one rare exception under Title 38, Chapter 1, Part 3, §3.55. If a second marriage took place on or after January 1, 1971 and ended such that the divorce began on or before November 1, 1990 and the surviving spouse is now single, then a surviving spouse previously married to a veteran may qualify.

However, you should speak directly with a VA certified attorney or VSO about other programs your Mother may qualify for, either now or in the future. Be sure to give them details on your Father’s death and military service history. The Dependency and Indemnity Compensation Program (DIC) allows a surviving spouse to keep benefits from the first spouse if married after the age of 57 on or after December 16, 2003. Alternatively, the widow may reapply for benefits if the second marriage ends due to death or divorce. The basic DIC rate for a qualified surviving spouse is $1,154.00, but can be in-creased if the surviving spouse is homebound or in need of Aid and Attendance.

DIC at lower rates is also available for parents of a single veteran who died during service or of a service related connected condition. The definition of parent also includes grandparents and aunts and uncles who actually raised a child, but never formally adopted the deceased veteran. Very few eligible parents know of this program. Certain dependent children might qualify as well.

Under a US District Court decision for the Northern District of California in Nehmer vs. U.S. Department of Veteran Affairs, 712 F. Supp. 1404, (N.D. Cal. 1989), the VA must re-adjudicate previously denied claims for IHD, PD or HCL filed by Nehmer class members (Vietnam Veterans on the land and Blue Water Veterans from January 9, 1962 to May 7, 1975 and their survivors) and provide retroactive benefits. This requirement involves claims filed or denied from September 25, 1985 to the effective date of the VA final regulation establishing a presumption of service connection for the disease claimed. Be sure to check The Nehmer Guide to see what constitutes a claim and spousal eligibility. Three diseases were added to the list of diseases associated with Agent Orange/herbicide exposure, namely – Parkinson’s disease, an ischemic heart condition (angina, heart attack, hardening of the arter-ies), and hairy cell and other chronic B-cell leukemia . If you think you or a parent qualify you can still apply through August 10, 2011 and possibly go back 25 years!

Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column.

IF A VETERAN IS WELL CAN THE SPOUSE GET AID AND ATTENDANCE BENEFITS TO HELP WITH HOME OR ASSISTED LIVING CARE?

scarletccarter@gmail.com — Thu, 04 Jun 2015 15:47:45 +0000

The short answer is no. While the Veteran is living the claim is technically his and based on his health. However there is a very narrow sort of exception that can help a lot of families.
If the Veteran is over 65 he is considered “disabled” by definition and he might qualify for the base pension amount if the combined income of the husband and wife is below $1380 per month. With SS benefits and a small pension few couple’s combined monthly incomes are that low. Here’s where the Aid and Attendance application comes into play because the couple’s income is computed AFTER all unreimbursed reoccurring medical expenses. So say a couple has a monthly income of $3500 with private-in-home care costs of $2500 per month. Medicare premiums costs the couple $190 per month and other non-reimbursed medical expenses are $310 per month. What is left over for the Veteran and Spouse to live on is only $500 per month. If their non-exempt assets are low enough the couple will qualify for VA assistance. A home, one car and household goods are exempt assets. Technically the assistance would come from the Low Income Pension program and could be over $12,000 per year in this example. In 2010 the max allowed by the Low Income Pension program was $1291 per month or $15,493 per year for a veteran with a dependent spouse. These amounts change slightly from time to time.
In order for the Spouse’s assisted living or care expenses to be approved medical expenses, the Spouse must be examined by a doctor and Form 21-2680 must be filled out by the doctor and turned in with the Examination for Housebound Status or Permanent Need for Regular Aid and Attendance application Form 21-2680 with supporting documentation on the unreimbursed medical expenses.
If you call the VA about potential benefits you will be asked about the amount of your combined household income and if your combined income is above the maximum limit the VA will likely tell you that you are not eligible for any benefits. However because of the above referenced deductions you and your spouse are eligible!
A couple where one spouse is highly likely to enter a nursing home might be better served meeting with an elder law attorney to determine if they can qualify for Medicaid.
Working with a certified VA attorney is a good idea.

Disclaimer: Information contained in this column is meant to be of general information on frequently asked disability, elder law, estate planning and probate law, not specific legal advice to a client. No attorney-client is created by reading this column.

WHAT IS DD214 AND WHY DO YOU NEED IT?

scarletccarter@gmail.com — Tue, 23 Sep 2014 15:47:22 +0000

If you are a veteran, a parent, dependent or spouse of a living or deceased veteran, you may be entitled to benefits through Veteran’s Affairs. A Report of Separation known as a DD Form 214 is a record that shows when and where a service member enlisted and when they were released from active duty. This record may also show the veteran’s home address at the time of enlistment and their location at the time of discharge, the different places they were assigned and for how long (perhaps overseas), their last duty assignment and rank, their job specialty, any education received while serving, and any medals, or awards given to the veteran.

Some governmental agencies, like the Social Security Administration, employment agencies, and Veteran’s Affairs may require this form to verify military service for benefits and employment. The DD 214 is also used to apply for VA Aid and Attendance benefits for skilled care, at home or in a facility.

The veteran or next of kin to the deceased veteran can request the DD Form 214 online at: http://www.archives.gov/veterans/military-service-records/get-servicerecords. html. Click on the “DD Form 214” link and you can choose to either submit your request by completing the Standard Form 180 by way of mail, facsimile, or online. The cost for this request, if any, will depend on the reason needed and how much information is found once your request is processed. You will be contacted regarding payment of the cost before the information is mailed.

IMPORTANT NEWS FOR VIETNAM VETERANS WITH PARKINSON’S, B CELL LEUKEMIAS, AND ISCHEMIC HEART DISEASE

scarletccarter@gmail.com — Tue, 23 Sep 2014 14:30:25 +0000

On October 13, 2009, Veteran’s Affairs Secretary Shinseki established service connection for Vietnam veterans with three conditions; Parkinson’s, B cell leukemias, and ischemic heart disease. This is major news for our Vietnam Veterans who suffer with any of these diseases. It is also major news for the surviving spouses of Vietnam veterans who died of any of these diseases. The veteran’s death certificate should list one of these presumptive diseases as the cause of death or the cause of death must be clearly linked to one of these diseases. The decision to add these new disability conditions was based on scientific evidence linking these conditions to exposure to Agent Orange, an herbicide sprayed in Vietnam. The VA typically requires proof of “boot on the ground” or direct exposure to Agent Orange to qualify.

Please note that on November 2009, the National Veterans Affairs and Rehabilitation Commission released a bulletin stating that the VA instructed its regional offices to stay the adjudication of all claims seeking presumptive service connection related to the three new conditions pending the introduction of final regulations into the Federal Registry. However, veterans and surviving spouses who would qualify for these benefits are urged to go ahead and submit a claim to help lock in a retro-active payment date.

LONG-TERM CARE FOR SENIOR VETERANS

scarletccarter@gmail.com — Tue, 23 Sep 2014 14:29:04 +0000

In 1919 President Woodrow Wilson proclaimed Nov. 11th as Armistice Day to honor those veterans that served in World War I. In 1954, President Eisenhower changed the name to Veterans Day to honor the veterans of all wars. Every Nov. 11th a color guard representing all branches of services stand as the presidential wreath is laid at the Tomb of the Unknowns at Arlington National Cemetery and Taps is played.

Since its establishment in 1930 the Department of Veterans Affairs (aka DVA) has evolved to support and aid veterans in numerous ways. One of these services is the Veterans Health Administration, the largest single provider of medical care in the US with 22 regions, 154 hospitals and 875 outpatient clinics. The DVA provides three types of long term care services for veterans.

Health care benefits to veterans with service connected disabilities, who are receiving a VA pension or who are low income.
State veterans’ homes offer nursing home care. A few have assisted living and domiciliary care. There are usually waiting lists.
A third benefit is disability income programs. These are known as “Compensation” for service connected disability and “Pension Benefits” (but more commonly referred to as Aid and Attendance Benefits).

Veterans that served at least 90 days active duty during a period of war are potentially eligible for Pension/Aid and Attendant benefits.
Qualifying veterans over the age of 65 are eligible for Aid and Attendance, but must meet income and asset tests. The personal residence, vehicles, and most personal property are exempt. Those under the age of 65 must be totally disabled to qualify. Disability does not have to be service connected.
A spouse, dependent disabled adult child, and surviving spouse that has not remarried can also qualify for Aid and Attendance.

The Aid and Attendance benefit provides income to cover the costs associated with home care, assisted living, nursing home care, adult day care, and other unreimbursed medical expenses. It can also pay a family member, other than the spouse, to be the caregiver. The amount of payment varies with the type of care, recipient’s other income, and marital status of the recipient. Claims forms are available online at VA.gov and from most local VA offices. Medical evidence is required in order to receive a rating for Aid and Attendance or housebound services.

For a free booklet with forms you may contact the National Care Planning Council and ask for “How to Apply for the Veterans Aid & Attendance Pension Benefit” online at www.longtermcarelink.net. For a free flyer on the potential income available, the current asset roof, and answers to frequently asked questions call or e-mail this law office.

Veterans and their surviving spouses who are over the asset limits may do some estate planning and realigning of assets to qualify. A certified expert in this area should be sought.

WHAT KIND OF FUNERAL RELATED BENEFITS ARE AVAILABLE TO VETERANS?

scarletccarter@gmail.com — Tue, 23 Sep 2014 14:27:39 +0000

When my Father passed some years ago the flag ceremony performed by two active duty sailors at his grave side was part of the memorial to our loved one who gave four years of service. That flag hangs above my desk and is a daily reminder of my Father’s life and love for his country, a family treasure that often causes me to stop with gratitude and remember that I live in a land of freedom. Yet I know that many brave men and women paid the ultimate price for my freedom.

A burial flag is provided at no cost to drape the casket or accompany an urn of any Veteran with an honorable discharge. Apply on VA form 21-2008 at any VA regional office or US Post Office. Generally a funeral director can assist with this matter.

In addition to burial flags, Presidential Memorial Certificates signed by the current president are available to next of kin and more than one certificate can be issued. Make application on VA form 40-0247 at any VA regional office. You will need to enclose a copy of the death certificate and the Veteran’s discharge papers or DD214.

Headstones are furnished upon request or a marker for an unmarked grave at no charge for any deceased Veteran around the world, regardless of their date of death. Flat makers are in granite, marble or bronze and upright headstones where allowed are in granite and marble. Bronze markers are also available for inurnment of cremated remains. There may be a fee for placing the same in a private cemetery.

Burial allotments for non-service connected deaths after December 1, 2001 are available for up to $300 for burial and funeral arrangements and $300 for plot-internment. Significantly more funds are available for service related deaths. If death happens while in a VA hospital or nursing home, some transportation expenses for the Veteran’s remains are possible. Apply on VA-form 21-530. This form is available at www.va.gov/vaforms. You will need death certificate, DD214 and paid in full funeral/burial bills.

Veterans can be buried in 131 national cemeteries but arrangements cannot be made over the internet and do not include cremation or local funeral arrangements. Opening and closing of the grave is covered along with perpetual care of the grave site. Spouses can be buried with the Veteran whose name, date of birth and death can be placed on the Veteran’s headstone at no cost. Many states including SC have state veterans cemeteries, but may have residency requirements. Burial at sea is possible with certain restrictions by calling the US Navy Mortuary Affairs at 866-787-0081.

For more information write, call or visit the following web site:

US Department of Veteran Affairs
810 Vermont Ave. NW
Washington, DC 20420
1-800-827-1000
www.cem.va.gov