VA Accreditation Course

Transcription

1 VA Accreditation Course Michael L. Shea, Esq. The Law Offices of Michael L. Shea, LLC About the Presenter: Mike Shea Mike is a Colorado attorney accredited to practice before the Veterans Administration and the Court of Appeals for Veterans Claims. He is a sole practitioner in Centennial, Colorado where his practice focuses on the legal issues facing veterans and their families. Mike is a retired military officer who spent eight years on active duty with the U.S. Marine Corps and 20 years with the Colorado Army National Guard. He retired from the National Guard in Mike s combat experience includes one tour of duty in Vietnam as a Marine helicopter pilot (1972/73) and two tours of duty in Iraq as an Army medevac helicopter pilot (2003 and 2007/08). Mike s interest in the legal issues of veterans developed as a result of his two deployments to Iraq and observing the problems experienced by soldiers and Marines as a result of their combat experiences. Mike is a member of the Colorado and Arapahoe County Bar Associations. He is vicechair of the Dispute Resolution section and is a member of the Military Law Committee of the Colorado Bar. He is a member of Colorado Lawyers for Colorado Vets, a project of the Denver and Colorado Bar Associations. Mike is a graduate of the University of Denver. He received his MBA and his Juris Doctorate in Mike can be reached at , or by at mike@mikesheaveteranslaw.com. VA Accreditation Course 2014 Michael L. Shea Page i

2 What This Course Will Cover This manual covers two half-day presentations. The first half of the manual covers the basics for accreditation to practice before the Department of Veterans Affairs (VA). Subsequent to the self-certification application for accreditation, the attorney who wishes to practice before the VA must complete 3 hours of qualifying continuing legal education. The CLE course must be approved for a minimum of 3 hours of CLE credit by any State Bar association. The 3 hour CLE must cover the following topics: Representation before the VA; Basic eligibility for VA benefits Disability compensation under 38 U.S.C. Chapter 11 Pension under 38 U.S.C. Chapter 15 Dependency and indemnity compensation under 38 U.S.C. Chapter 13 Claims Procedures Right to appeal and the appeals process The second half of the manual covers more in-depth issues for practitioners. Agent Orange Claims and the Nehmer case Recent changes in VA regulations concerning Claims for TBI and PTSD Representing the Claimant who has an Other than Honorable Discharge Section 1151 claims The DRO Process Escalating the Appeal to the Board of Veterans Appeals Advocacy tips for claims and appeals The Court of Appeals for Veterans Claims VA Accreditation Course 2014 Michael L. Shea Page ii

3 Equal Access to Justice Act This course includes a CD-ROM that contains most of the forms that an attorney will need to either process a Veteran s claim or pursue an appeal. The author requests comments, addressed to the above address if links are broken or out of date. Primary References 38 United States Code 38 Code of Federal Regulations M21-1MR (WARMS Web Automated Resource Materials, Manual Re-write) The VA s website at Stichman, Barton; Abrams, Ronald; George, Louis, Veterans Benefits Manual. National Veterans Legal Services Program, LexisNexis (2013). Board of Veterans Appeals website at Board of Veterans Appeals search engine at Court of Appeals for Veterans Claims website at VA Accreditation Course 2014 Michael L. Shea Page iii

4 America s Veterans Population Chapter I The Basics of Representation World War II. The Department of Veterans Affairs (VA) estimates that by September 30, 2013 there will be1.2 million living WWII veterans, although more than 850 pass away each day. 1 It is estimated that there will be no living WWII veterans by Korea. The Korean War period, as defined by the VA, lasted from June 27, 1950 to January 31, According to the VA, 1.8 million men and women served incountry, and 5.7 million served during the conflict. 3 The Veterans Administration estimated last year that there were 2.27 million Korean War Era Veterans still living. 4 Vietnam. Between February 28, 1961 and May 7, 1975 over 3.4 million service members served in-theater in Vietnam. A total of 8.7 million served during the Vietnam War Era. It is estimated that there are currently 7.3 million living Vietnam War Era Veterans. 5 Persian Gulf. The Persian Gulf War is defined as August 2, 1990 to a date to be prescribed by Presidential proclamation. The period includes Desert Storm/Desert Shield, Operation Enduring Freedom and Operation Iraqi Freedom since September 11, The last twenty years of conflict in the Middle East have seen more than 2.2 million servicemembers deployed. 7 As of July 31, 2013 there were 1.37 million servicemembers deployed worldwide. 8 As of September 19, 2013 there were 139,480 servicemembers deployed in contingency operations in the Middle East. These numbers include Guard and Reservists ordered to active duty. 9 According to the VA, there are currently about 22 million living veterans of the U.S. military. In 2006, the VA provided medical services to over 5 million veterans. There were an additional 2.9 million veterans who were enrolled in the VA s healthcare system but didn t seek medical services that year. 10 As of September 30, 2011, the VA reports that 3.36 million veterans were receiving disability compensation payments for their service-connected injuries see also 38 CFR Supra, note 1. 4 Ibid. 5 Ibid. 6 Supra, note Ibid OCO Deployments tab VA Accreditation Course, Michael L. Shea 2014 Page 1

5 Millions 313,000 were receiving a VA Pension. 11 These numbers include the estimated number of WWII Veterans still living. There were 553,000 surviving spouses, children and parents receiving death benefits for their service and non-service connected disabled veterans. 12 With the end of the War in Iraq and the future drawdown of troops in Afghanistan, it is obvious that the services provided by the VA, both medical services and compensation and pension payments, will increase. This chart shows that the number of servicemembers who served and those who are still living and have applied for compensation or pension with the VA is approaching a one for one ratio. The number of servicemembers who have served in-country in the Persian Gulf period and the number who have applied for compensation or pension are almost equal You are taking this course because you have chosen to help these veterans apply for benefits or help them appeal the denial of benefits. The legal work that you have elected to perform is less important than the fact that you will be a valuable source of information and support for veterans as they navigate the benefits/claims process. DEFINITIONS WWII Korea Vietnam Persian Gulf Appx. Total Served In-country Still living Comp/Pen The Veterans Administration, like most government agencies, uses a lot of acronyms. It is necessary to define some terms that will be used throughout this course. These definitions are found in 38 U.S.C 501(a) and 38 CFR 3.1. Claim Application - means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 11 Supra, note Ibid. VA Accreditation Course, Michael L. Shea 2014 Page 2

6 dd214 means the basic discharge document issued by a military service to a servicemember who has served on active duty. Discharge or release - includes retirement from the active military, naval, or air service. DRO means the Decision Review Officer at the VA s Regional Office. ebenefits means the electronic system used by the VA to provide personal information, claims status and claims filing services for active duty and retired servicemembers. Use of this system requires a Common Access Card (CAC) or a DoD MyPay account. Fraud - means an intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the purpose of obtaining, or assisting an individual to obtain an annulment or divorce, with knowledge that the misrepresentation or failure to disclose may result in the erroneous granting of an annulment or divorce. Fraud also means an intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the purpose of obtaining or retaining, or assisting an individual to obtain or retain, eligibility for VA benefits, with knowledge that the misrepresentation or failure to disclose may result in the erroneous award or retention of such benefits. 13 Improved pension - means the disability and death pension programs, payable to a living Veteran, which became effective January 1, Improved death pension - means a benefit payable by the VA to a veteran s surviving spouse or child because of the veteran s non service-connected death. 14 Income for VA Purposes (IVAP) means the income used by the VA to determine pension eligibility. Not all income is counted by the VA. If the IVAP is greater than the MAPR, eligibility for pension will be denied. Marriage - means a marriage valid under the law of the place where the parties resided at the time or marriage, or the law of the place where the parties resided when the right to benefits accrued. Common law marriages are accepted if common law marriages are recognized by the state. 15 Maximum Annual Pension Rate (MAPR) means the maximum amount the VA will pay to a veteran as a pension. This amount is adjusted annually U.S.C a CFR 3.3(4) 15 M21-1MR, Part III, Subpart iii, Chapter 5, Section C 16 VA Accreditation Course, Michael L. Shea 2014 Page 3

7 NCA means the National Cemetery Administration of the VA. NGB22 means the discharge certificate issued by the National Guard. Old-Law pension - means the disability and death pension programs that were in effect on June 30, This is also known as protected pension. Reserve component - means the Army, Naval, Marine Corps, Air Force, and Coast Guard Reserves and the Army National Guard and Air National Guard. Service-connected - means, with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated in line of duty in active military service. Spouse and surviving spouse - Spouse means a person of the opposite sex (but see changes as a result of the U.S. Supreme Ct. case overturning certain provisions of the Defense of Marriage Act, U.S. v. Windsor, 570 U.S. (2013) Docket No ) whose marriage to the veteran meets the requirements of the definition of marriage set forth above. Surviving spouse means a person of the opposite sex whose marriage to the veteran meets the requirements of the definition of marriage set forth above and who was the spouse of the veteran at the time of the veteran s death; and who lived with the veteran continuously from the date of the marriage to the date of the veteran s death except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse; and the surviving spouse has not remarried, or after September 19, 1962, has not lived with a person of the opposite sex and held himself or herself out to the public to be the spouse of such other person. 17 STR means Service Treatment Records for medical care provided while on active duty. TRICARE means the health care program provided to active duty military, retirees and families. VARO - means Veterans Affairs Regional Office. VBA means the Veterans Benefit Administration. Veteran - means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable CFR 3.50 but see also the provisions in 38 CFR 3.55 for exceptions to the remarriage rule. VA Accreditation Course, Michael L. Shea 2014 Page 4

8 For compensation and dependency and indemnity compensation the term veteran includes a person who died in active service and whose death was not due to willful misconduct. For death pension the term veteran includes a person who died in active service under conditions which preclude payment of serviceconnected death benefits, provided such person had completed at least 2 years honorable military service. Veteran of any war - means any veteran who served in the active military, naval or air service during a period of war. VHA means the Veterans Heath Administration. VSO means a Veterans Service Organization. These are recognized organizations where the organization can legally represent the veteran before the VA, or non-recognized organizations that can provide the veteran with information concerning benefits and claims but cannot represent the veteran before the VA. Veteran Services Officers means those individuals employed by the counties who represent veterans on behalf of individual states Department of Military Affairs or similar organization. Willful misconduct - means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on the VA, unless it is patently inconsistent with the facts and the requirements of laws administered by the VA. VONAPP means the VA s online application system for benefits. WARMS means the web-automated reference material system. ACCREDITATION Effective June 23, 2008, attorneys who represent or assist veterans in preparing, presenting and prosecuting claims for benefits must be accredited by the VA s General Counsel. 18 Attorneys assisting veterans with claims for benefits prior to the effective date of the new rules may continue to assist those veterans on those claims. Representation after June 23, 2008 requires accreditation U.S.C. Chapter 59, 38 CFR See VA General Counsel s FAQs on accreditation VA Accreditation Course, Michael L. Shea 2014 Page 5

9 The above rule also applies to those attorneys who represent veterans on a pro bono basis. 20 In order to be accredited, the attorney must file VA Form 21a Application for Accreditation as a Claims Agent or Attorney with the General Counsel. This process is fairly simple. The attorney self-certifies his or her qualifications and then mails, faxes or s the signed form to the General Counsel at: Department of Veterans Affairs Office of the General Counsel (022D) 810 Vermont Ave., NW, Washington, D.C Fax: (202) ogcaccreditationmailbox@va.gov. Everyone taking this CLE course who intends to represent veterans should have already submitted the VA Form 21a and received confirmation of accreditation from the General Counsel. After being recognized in the initial accreditation process, an attorney must complete three hours of qualifying continuing education during the first 12-month period following the date of initial accreditation. 21 This course satisfies that requirement. Once you have completed this course, or any other approved course, send a letter to the General Counsel at the end of your first year of accreditation, certifying that you have completed the CLE. 22 To maintain your accreditation, you must complete another three hours of CLE on veterans benefits law within the first three years after accreditation, in addition to this course, and must attend a three hour course every two years thereafter. 23 In other words, there is a lot of continuing legal education for possibly not much remuneration, as we will discuss below. REPRESENTATION Once you have been accredited by the General Counsel, you may represent claimants upon submission of a VA Form 21-22a Appointment of Representative. If you have other attorneys, support staff or legal assistants in the office who will be working on the claim, you will need to get the written consent of the veteran for those individuals to view the veteran s VA records Ibid CFR (b)(1)(iii) CFR (b)(1)(iv). 23 Ibid CFR (c)(3). VA Accreditation Course, Michael L. Shea 2014 Page 6

10 A veteran may have only one representative at a time. Often, a veteran has retained a Veterans Service Organization (VSO) such as the Veterans of Foreign Wars, American Legion, Disabled American Veterans, Paralyzed Veterans of America, or a county Veterans Services Officer, etc. to represent him or her on the initial claim but sometimes the claim gets lost or the initial claim is denied and the previous representative recommends that the veteran seek an accredited attorney. 25 When this occurs, the attorney must submit a 21-22a to the VARO. The VA then deletes the previous power of attorney from the veteran s file. 26 A search engine for accredited attorneys, VSOs and county Veteran Services Officers is available at VSOs and county Veteran Services Officers are tremendous resources if you have questions regarding claims or process. A list of all state veteran services officers is available at the website of the National Care Planning Council. 27 FEES Only accredited agents and attorneys may receive fees. If a veteran comes to you for help in preparing and filing the initial claim, you may not charge a fee for those services. 28 However, once an agency of original jurisdiction (generally the VA Regional Office where the original claim was filed) has issued a decision on a claim or claims, including any claim to reopen under 38 CFR or for an increase in the rate of a benefit, and a Notice of Disagreement has been filed with respect to that decision on or after June 20, 2007, a reasonable fee may be charged. The fees that may be charged may be based on a fixed fee, an hourly rate, a percentage of past-due benefits, or any combination of the above. Fees that are to be paid by the VA directly to the attorney are presumed to be reasonable if they are limited to 20 percent of the total amount of past due benefits. Fees exceeding 33 1/3 percent of past-due benefits are presumed by the VA to be unreasonable and are unlikely to be reimbursed to the attorney by the VA. 29 Past-due benefits are one-time payments and do not include any future increases in benefits that are paid to the veteran. FEE AGREEMENTS Fee agreements should be established at the time the veteran first contacts you and should specify that no fees will be charged for filing the claim. Fee agreements must clearly specify if the VA is to pay the attorney directly. If this provision is not in the The 21-22a form sometimes gets lost, or doesn t get filed in the Veteran s electronic file. Notices to the Veteran may go to the previous representative, e.g. Disabled American Veterans. It is helpful if the attorney calls or visits the RO several weeks after the form has been filed on behalf of the Veteran to insure that the appropriate representative is on file CFR (c) CFR (e),(f) and (h). VA Accreditation Course, Michael L. Shea 2014 Page 7

11 agreement, the VA will presume that the veteran is liable for paying the fee directly to the attorney. 30 Fee agreements must specify: the name of the veteran, the name of the claimant, if other than the veteran, the name of any disinterested party (if any), the veteran s VA file number 31, and the specific terms under which the amount to be paid will be determined. 32 Copies of fee agreements must be mailed to the Office of the General Counsel within 30 days of their execution. You may also send a PDF of the fee agreement to feeagreements.ogc@va.gov. 33 The document title must be in the form {attorney last name}.{veteran s last name, first initial}.{date of agreement (mm/dd/yyyy)}, e.g. Shea.Smith,A If the fee agreement specifies that the fee will be a direct pay from the VA, the attorney must also file a copy with the office of original jurisdiction. 34 The VA pays the attorney 60 days after the veteran receives the arrearages. The veteran can release the attorney fees earlier than 60 days by writing a letter to the regional office. The VA will withhold 5% of the fee paid to the attorney, but not in excess of $100, to cover the cost of paying the fee to the attorney. 35 ORGANIZATIONAL STRUCTURE OF THE VA The U.S. Department of Veterans Affairs consists of three main administrative bodies: the Veterans Health Administration, Veterans Benefits Administration and the National Cemetery Administration. 36 Veterans Health Administration (VHA) The VHA currently provides health care to more than 8.5 million enrolled veterans at more than 1,400 sites throughout the country. The VA operates 152 medical centers (VA Hospitals) and more than 800 community based outpatient clinics. It has affiliations with more than107 academic health systems. In 2011, the medical centers treated more than 690,000 patients and the outpatient clinics registered more than 79 million visits. 37 Claims for medical benefits only can be filed on VA form 1010EZ which is a fillable pdf form CFR (g). 31 For initial claims, the VA file number will be the Veteran s social security number. For claims filed prior to1980, the VA assigned a different number to the claim. Review the Veteran s paperwork from the VA to determine which number should be put on correspondence to the VA, especially the fee agreement. 32 Supra note CFR (g)(2) CFR (g)(3) CFR (h). 36 Department of Veterans Affairs 2010 Organizational Briefing Book, VA Accreditation Course, Michael L. Shea 2014 Page 8

12 Veterans Benefits Administration (VBA) The VBA is responsible for administering those programs that provide financial and other forms of assistance to veterans, dependents and survivors. These programs include compensation, pension, survivor s benefits, vocational rehabilitation and employment assistance, education (GI Bill), home loan guaranties and life insurance coverage. This is the office that you will primarily deal with when processing claims for Veterans. National Cemetery Administration (NCA) The NCA operates 131 national cemeteries in the U.S. and Puerto Rico. Arlington National Cemetery in Washington, D.C. is probably the best known of these national cemeteries. The NCA furnishes headstones and markers at no cost to the veteran s family. 38 More than 3.5 million veterans, spouses, and dependents are buried in the NCA s cemeteries. VETERANS BENEFITS IN GENERAL Service-Connected Disability Benefits Disability benefits are also called compensation. Monetary amounts are paid to a veteran because of a service-connected disability. Although attorneys are not expected to be medical professionals, if you are going to represent veterans with service-connected disabilities, it is important to know and understand the schedule for Rating Disabilities in 38 CFR Part IV. 39 The service-connected rate schedule for 2014 is included at Exhibit A. 1. The claimant must be a veteran. In the case of claims by surviving spouses and children, the deceased spouse must have been a veteran. That is, the claimant must have served on active duty. Members of the National Guard must have been called to active duty under Title 10 U.S.C. 40 Reservists may be considered to have served on active duty under certain circumstances The veteran must have been discharged or released under conditions other than dishonorable, but see 38 CFR for medical care for servicemembers discharged with an Other Than Honorable discharge (OTH) The veteran must have incurred the injury or illness during service and in the line of duty (or for certain Agent Orange claims within a period of time after release from active duty). Certain illnesses and injuries acquired during designated periods of war U.S.C. 2306(d) CFR Part 4; M21-1MR, Part IV, Chapters 1 and CFR 3.12a(a) CFR CFR VA Accreditation Course, Michael L. Shea 2014 Page 9

13 are presumed to be service-connected so long as there is a diagnosis of a current disability. These presumptions exist for Korean War veterans who have cold injuries, Vietnam veterans with certain Agent Orange related illnesses, and Gulf War veterans with undiagnosed illnesses. 4. The veteran must show competent evidence of a current disability or persistent or recurrent symptoms of a disability. The Disability Ratings Schedule CFR Part IV provides the description and tables for how various injuries and illnesses are rated. It is important that the attorney/representative become familiar with the provisions of Part IV. 2. Disability ratings go from a minimum of 10% to a maximum of 100% in 10% increments. 3. Ratings are not additive. That is, a veteran with two separate ratings, say 40% and 30% does not receive compensation at the 70% level but at the 60% level. The VA assumes that prior to the issuance of any rating, the veteran is 100% able-bodied. The VA starts with the highest rating, in this case 40%, and multiplies it by the 100% status. This results in the veteran being 40% disabled and 60% able-bodied. The VA then applies the 30% disability rating to the remaining 60% and arrives at 18%. This factor is then added to the 40% to arrive at 58%, which is rounded upward to 60%. The veteran is now determined to be 42% able-bodied. Any further disability ratings will now be calculated against this able-bodied number. For example, subsequent ratings of 10% each will reduce the able-bodied figure by 4.2% and then 3.8% respectively. 4. Certain illnesses/injuries may be rated at the minimum 10%. For example, Tinnitus is usually rated at the minimum rating. 5. Certain illnesses/injuries may be given a service-connection but a 0% rating. For example, many pilots have severe hearing loss. However, the VA will usually rate hearing loss as service-connected but with a 0% rating. A veteran has to be virtually deaf in order to receive any compensation for hearing loss. However, with any service-connected rating, a veteran is entitled to hearing aids, regardless of whether the disability is related to hearing loss. Special Monthly Compensation (SMC) SMC is a benefit established by statute. 43 It is paid in addition to the basic scheduler rate for the anatomical loss, or loss of use, of a hand or foot or sensory organ. The SMC tables provides additional payments for loss or loss of use of one or both extremities, loss or loss of use of a creative organ, blindness, complete aphonia, U.S.C.S VA Accreditation Course, Michael L. Shea 2014 Page 10

14 deafness in both ears, loss of one or both breasts, being housebound or requiring a need for aid and attendance. For example, a single veteran may be rated at 100% due to the anatomical loss of both arms above the elbow. Under the regular scheduler rate, the veteran s service-connected compensation is $2,858. Under 38 U.S.C. 1114(n), the veteran will be paid SMC of $1,318 for a total monthly compensation of $4176. Aid and Attendance (A&A) or Housebound Aid and Attendance is an SMC for those veterans rated at 100% and in need of the regular aid and attendance of another to perform personal functions of daily living. 44 The following factors are considered when evaluating entitlement to A&A: 45 Housebound 1. Inability to dress or undress without assistance, 2. Inability to keep oneself ordinarily clean and presentable without assistance, 3. Inability to feed oneself without assistance, 4. Inability to attend the wants of nature, 5. Incapacity that requires care or assistance on a regular basis to protect the veteran from the hazards or dangers incident to his daily environment. Certain individuals may qualify for Housebound status under 38 CFR Veterans entitled to disability pension, and 2. Surviving spouses entitled to a. Improved Pension b. Death compensation, or c. Dependency and Indemnity Compensation. A veteran qualifies for SMC if s/he has a single, permanent disability rated at 100% and has other disabilities independently ratable at 60% or more; or is permanently housebound by reason of his/her disabilities, or qualifies under Hartness v. Nicholson (2006) 47 when the veteran s pension was granted based on the veteran being 65 or older. For non-service connected claims, the disabilities must be permanent. 44 Ibid at (l) C.F.R (a)(2013). 46 M21-1MR, Part V, Subpart iii, Chapter 2, Section A, 2. A Vet. App. 216 (2006) VA Accreditation Course, Michael L. Shea 2014 Page 11

15 A veteran is considered permanently housebound if the individual is substantially confined to home (or ward or clinical areas, if institutionalized) or immediate premises because of disability or disabilities that are reasonably certain to be permanent. 48 A&A and Housebound payments may be reduced or discontinued based on changes in the veteran s status. Pension Benefits A non-service connected pension may be paid to a veteran for non serviceconnected disabilities under certain conditions. 49 See Exhibit C for the MAPR amounts. Basic Eligibility for Pension 1. The claimant must be a veteran. 2. The veteran must have been discharged or released under conditions other than dishonorable, but see 38 CFR for medical care for servicemembers discharged with an Other Than Honorable discharge (OTH) The veteran must have served at least 90 days of continuous active duty wartime service if he or she served prior to September 7,1980 or 24 months of active service, or the full period for which the veteran was called or ordered to active duty, if the service occurred after September 7, At least one day of the service must have been during wartime. It is not a requirement that the veteran have have served in-country or overseas during that period. Financially needy veterans who served on active duty between wars and do not have a service-connected disability are not eligible for a pension. 4. The veteran must have limited income and a net worth that does not provide adequate maintenance (the needs test ). 5. The veteran must be permanently and totally disabled, or or older If the veteran is under the age of 65 and receiving a Social Security Disability benefit, (SSDI or SSI) the VA will presume that the VA pension disability requirement is met Supra, Note 52 at A, 2. C CFR VA Fact Sheet 16-8 (Other than Honorable Discharges: Impact on Eligibility for VA Health Care Benefits)(Mar. 2010) U.S.C. 5303A, 38 CFR 3.12a. 52 M21-1MR, Part V, Subpart i, Chapter 2, 1.e. VA Accreditation Course, Michael L. Shea 2014 Page 12

16 The pension paid to a veteran is often called a live pension. The pension paid to survivors of veterans who died because of a non service-connected disease is called a death pension. The death pension is paid to a surviving spouse or child. 53 Once the claimant has met the conditions of basic eligibility, there are two additional financial requirements, a Needs Test, that determines eligibility on an income standard, and a Net Worth test that determines eligibility on the veteran s net worth. Needs test 1. The veteran s household income must be less than the Maximum Annual Pension Rate (MAPR). As of January 1, 2014 the rates are: 54 a. $12,652 for a veteran without a spouse, or a child, b. $16,569 with one dependent, c. $15,461 housebound without dependents, d. $19,379, housebound with one dependent, e. $21,107, Aid and Assistance without dependents, f. $25,022, Aid and Assistance with one dependent, g. $16,569, two veterans married to each other. 2. Countable Income. Countable income includes income from most sources as well as from any eligible dependents. It generally includes earnings, disability and retirement payments, interest and dividend payments from annuities and net income from farming or a business. 55 Unreimbursed medical expenses over 5% of the MAPR will reduce the amount of countable income. The pension only pays the difference between the amount of countable income and the MAPR. If a veteran s income decreases after the initial Pension award, the veteran may apply for additional Pension benefits on the basis of the reduced income. 56 Be aware of the time limits for the veteran to report the reduced income or submit information such as unreimbursed medical expenses, which reduce countable income Income exclusions. Certain income is excluded for purposes of eligibility for an Improved Pension. 58 This is not an exhaustive list. a. Welfare benefits, including Supplemental Security income b. Maintenance provided by a relative, friend or charitable organization. c. VA pension benefits, d. Reimbursements of any kind for any casualty loss, 53 M21-1MR, Part V, Subpart i, Chapter 1 a Rates.pdf CFR 3.660(b)(1). 57 M21-1MR, Part V, Subpart iii, Chapter 1, Section H, 52. d CFR VA Accreditation Course, Michael L. Shea 2014 Page 13

17 e. Profit from sale of real or personal property, other than in the normal course of business, f. Amounts in joint accounts acquired by reason of the death of the other joint owner, g. Unreimbursed medical expenses which have been paid within the past 12 months, under certain conditions, h. Certain educational expenses, i. Children s income under certain conditions. j. Prospective, annualized, recurring medical expenses (insurance premiums, cost of home care, adult day care, nursing home facility) expected to be paid within the next 12 months can reduce the countable income Changes in a pensioner s income may reduce or eliminate an award. Net Worth a. Situation: a veteran has a running award. The veteran wins $15,000 in the lottery. The VA discontinues the award the first day of the month after the month in which the veteran won the lottery because the IVAP exceeds the MAPR. b. Situation: a veteran is receiving Improved Pension of $599 per month, based on an IVAP of $9,319. The veteran receives social security payments of $16,555 per year but has continuing medical expenses of $7,730 per year. Effective December 1, 2004, the annual rate of SS goes up to $16,994 because of the COLA. This increases IVAP to $9,773 and reduces the veteran s monthly rate of pension to $598 from January 1, The veteran s net worth must be less than an amount set by the VA. No specific dollar amount can be designated as excessive net worth. The VA considers the facts and circumstances in each case. 60 The VA makes a formal administrative net worth decision if the veteran or beneficiary has net worth in excess of $80,000, whether or not the net worth bars entitlement. 61 In the case of the Improved Pension, the VA considers the veteran s assets, those of his or her spouse and that of the veteran s or surviving spouse s child The impact of net worth on the veteran s benefit is based on the veteran s life expectancy. The VA s programs are intended to give beneficiaries a minimum level of financial security, not to protect substantial assets or build up the CFR 3.272(g). 60 M21-1MR, Part V, Subpart iii, Chapter 1, Section J, a. 61 M21-1MR, Part V, Subpart iii, Chapter 1, Section J. b. (In some cases, net worth less than $80,000 may be a bar to entitlement.) CFR 3.275; M21-1MR, Part V, Subpart iii, Chapter 1, Section J, g. VA Accreditation Course, Michael L. Shea 2014 Page 14

18 beneficiary s estate for the benefit of heirs. One factor in the VA s determination is whether or not the veteran or beneficiary s property can be readily converted to cash to provide support to the veteran or beneficiary. 3. Changes in a veteran s (or spouse s) net worth may result in discontinuance of the pension. 63 Below are some examples of changes in a veteran s net worth that resulted in adjustments to the Improved Pension. a. Situation: A veteran with a running award owns a painting by an artist, valued at $30,000. The artist dies and the value of her works increases dramatically. The veteran now owns a painting worth $100,000. The VA uses VA Form , Request for Details of Expenses, to obtain information on the veteran s financial status and learns of the painting s increased value. The VA determines that the veteran s net worth is excessive as of the date of death of the artist. The VA terminates the pension as of January 1, of the year following the discovery of the value of the painting. If the veteran failed to disclose asset information, and the VA later determines that the veteran s net worth was excessive at the time of the pension award, the VA may recapture the amount of pension paid. 64 b. Situation: In October 2005, a veteran with a running award wins $100,000 in the Irish Sweepstakes. On November 1, 2005 the pension is stopped because the veteran s IVAP is projected to exceed the maximum annual pension rate (MAPR). On November 11, 2006, the veteran re-opens the claim and claims no income from any source. Upon inquiry, the veteran says she still has the $100,000 but keeps it under her mattress. The VA then disallows the claim for excessive net worth. On December 27, 2006, the veteran is burglarized and loses the $100,000 that was under the mattress. The veteran re-opens her claim on January 24, Assuming that the veteran still has no income, the VA will award a pension effective December 27, DEPENDENTS AND SURVIVORS BENEFITS Dependency and Indemnity Compensation (DIC) DIC is a monthly payment made: 1. To a surviving spouse, child, or parent because of a service-connected death that occurred after December 31, 1956, 2. To a surviving spouse, child, or parent because the veteran had been rated as totally disabled due to a service-connected disability prior to his/her death, typically for at least ten years, CFR 3.660(a) 64 Ibid, see also M21-1MR, Part V, Subpart iii, Chapter 1, Section J, 68. B. VA Accreditation Course, Michael L. Shea 2014 Page 15

19 3. To a surviving spouse, child, or parent because of death due to VA medical treatment per 38 U.S.C. 1151, or 4. Because a surviving spouse, child, or parent elects DIC in the case of a service connected death that occurred before January 1, The surviving spouse must meet the following requirements: a. Was married to a servicemember who died on active duty, active duty for training, or inactive duty training, or b. Was validly married to the veteran before January 1, 1957, or c. Married the veteran within 15 years of discharge from the period of military service in which the disease or injury that caused the Veteran s death began or was aggravated, or d. Was married to the veteran for at least one year, or e. Had a child with the veteran, and f. Cohabited with the veteran continuously until the veteran s death or, if separated was not at fault for the separation, and g. Is not currently remarried. Surviving spouses are entitled to additional DIC or death pension for the veteran s children. 65 The children must not be included on the surviving spouse s DIC, must be unmarried and must be under age 18 or between the ages of 18 and 23 if attending school. Death Pension A Death Pension is a benefit paid to a surviving spouse or child in the event of a veteran s non service-connected death. Pension eligibility requires the veteran to have met certain service requirements pertaining to length of service and service during a period of war, and requires the beneficiary to have certain income and net worth limitations. 66 The VA looks at countable income for pension eligibility. Countable income includes earnings, disability and retirement payments, interest and dividends, and net income from farming or business. Some income is excluded, such as income from Social Security. Certain expenses are deducted from countable income, such as the surviving spouse s education expenses and un-reimbursed medical expenses. Civilian Health and Medical Program (CHAMPVA) 67 CHAMPVA is a medical insurance program for a spouse, surviving spouse, or child of an eligible sponsor, who is not otherwise TRICARE eligible. 68 CHAMPVA is health care provided by civilian doctors and in civilian hospitals, not by the VA CFR 3.23, 3.57 and 3.356; M21-1MR, Part IX, Subpart I, Chapter CFR 3.3(b). 67 Supra note CFR 3.50, 3.52, 3.53, 3.55, 3.57 (except subsection (d)), 3.58 and VA Accreditation Course, Michael L. Shea 2014 Page 16

20 CHAMPVA Eligibility To be eligible for CHAMPVA, an individual must be 1. The Spouse or child of a veteran rated as 100% permanently and totally disabled by the VA for a service-connected disability, 2. The surviving spouse or child of a veteran who a. Died from a VA-rated SC disability, or b. At the time of death was rated 100% permanently and totally disabled, or c. The surviving spouse or child of a military member who died in the line of duty, not due to misconduct. By law, the CHAMPVA program must track the TRICARE provisions closely. BURIAL BENEFITS Veterans, who have been discharged under conditions other than dishonorable, are entitled to burial in a National Cemetery. Upon request, the VA will furnish, at no charge to the applicant, a government headstone or marker for the unmarked grave of any deceased eligible veteran. Use VA Form , Application for Standard Government Headstone or Marker. Burial in a VA national cemetery is available to eligible veterans, spouses and dependents at no cost and includes the gravesite, grave-liner, opening and closing of the grave, a headstone or marker, and perpetual care as part of a national shrine. Surviving spouses who died on or after January 1, 2000 do not lose eligibility for burial in a national cemetery if they remarry. Unmarried dependent children, who are under 21 or under 23 if a full-time student, are eligible for burial. Veterans, active duty service members and retired Reservists and National Guard are eligible for an inscribed headstone or marker for their unmarked grave at any cemetery. For veterans, benefits may include a burial flag and military funeral honors. The VA will provide, at no cost, a United States flag, to drape the casket of eligible veterans. Generally, the flag is given to the next-of-kin as a keepsake after the funeral. Apply by using VA Form , Application for United States Flag for Burial Purposes. VA Accreditation Course, Michael L. Shea 2014 Page 17

21 OTHER BENEFITS Medical Treatment Veterans who do not have a service-connected disability or who are not currently rated by the VA may receive hospital care and domiciliary care under certain conditions. 69 A veteran s character of discharge may bar eligibility for medical treatment. 70 It is helpful to understand that the military services have been discharging many young soldiers, sailors and Marines under Other Than Honorable conditions, for willful and persistent misconduct or for adjustment disorder. Discharges for adjustment disorder have risen from 1,452 in 2006 to 3,840 in The characterization of discharge as Other than Honorable would bar the veteran from receiving medical care except for those conditions that are service-connected. 72 In many of these cases, the misconduct is a direct result of PTSD or Traumatic Brain Injury (TBI). The attorney may challenge a denial of benefits with sufficient information regarding the military service and an incident(s) that would provide a documented PTSD stressor. The veteran may file the VA Form 10-10EZ to apply for health benefits. Education and Training (GI Bill) 73 Vocational Rehab Home Loan Guarantee Life Insurance THE CLAIMS PROCESS The first stage of the claims process is where the attorney can provide the greatest service to the veteran. Intake Process 1. Determine the status of the claimant. Is the claimant the veteran or is the claimant a spouse or child of a deceased veteran? 2. Determine the veteran s marital status and whether he or she has dependent children. Ask the veteran to provide a marriage certificate, and birth certificate(s) of children. If the veteran and spouse are separated, determine the reason for the separation in the case of a spouse applying for benefits. If the veteran is U.S.C. 1710(a)(1), 38 CFR 17.46, and CFR CFR 3.360(a) TFpTHZ3TGw%3D. VA Accreditation Course, Michael L. Shea 2014 Page 18

22 currently married, and one or both of the parties has been previously married, get the names of previous spouses and the dates and places of all divorces. 3. Determine the basic information regarding the veteran s military service. This includes dates of entry into the service (also called the Pay Entry Base Date or PEBD), dates of release from active duty, military occupational specialty, units assigned to (if the veteran can remember), overseas service, any medals awarded, and whether the Veteran served on the ground in Vietnam or Southeast Asia during Desert Shield/Desert Storm. 4. Determine whether the veteran has his/her Certificate of Discharge (dd214) or equivalent evidence of active duty service from the Reserve component. The VA requires an original dd214 or a certified copy. However, it appears under the new VONAPP electronic claims filing system that a PDF of the dd214 may be submitted. If the veteran has his/her original, the VA will return it. However, it is better to have the veteran record the original with the Clerk and Recorder of the county where s/he lives and then get a certified copy from the Clerk to submit to the VA. 5. If the veteran presents a dd214, determine whether the veteran is eligible for benefits based on the character of discharge. If the claimant only presents an NGB 22, ask him whether he was activated for Bosnia, Iraq, Afghanistan or any other duty under Title 10 orders. If he says yes, then he should be able to produce a dd Ask the veteran whether s/he has all of the relevant military, VA and civilian medical records that would substantiate a claim for compensation or pension. This includes a current diagnosis from a VA or private physician. In the case of a claim for service-connected PTSD, the VA requires a diagnosis from either a VA provider or a diagnosis from a licensed psychiatrist. One of the problems facing a number of Army Vietnam veterans is the lack of official records. 7. On July 12, 1973, a fire at the National Personnel Records Center (NPRC) destroyed approximately 80% of the records for Army personnel discharged between November 1, 1912 and January 1, 1960, and 75% of the NPRC records held for veterans with surnames beginning with Hubbard and running through the end of the alphabet and who were discharged from the Air Force between September 25, 1947 and January 1, In this case, have the veteran sign a National Archives form NA13055, Request for Information Needed to Reconstruct Medical Data. Send this form in with the claim and an explanation of the need for the records. 8. If the veteran has all of necessary documents, have the veteran file a EZ or EZ as appropriate. These are the forms used for the Fully Developed Claim process. 74 M21-1MR, Part III, Subpart iii, Chapter 2, Section E, 26. VA Accreditation Course, Michael L. Shea 2014 Page 19

23 9. Determine whether the veteran has already appointed a VSO as his/her representative. 10. If the veteran does not have the necessary information, send in a letter with his/her signature, establishing an informal claim, then do the following: Gathering Information 1. Have the veteran complete the VA Form 21-22a Appointment of Representative (POA) naming you as the representative, and file it with the VARO. Request the veteran s VA records, called the C-file if the claim is for an increase of existing benefits or the veteran is appealing a denial of benefits. The VA takes some time to process these documents. 2. Get the dd214 from evetrecs. This online request system is available on the VA s website and on the National Archives website. However, it still requires the veteran to sign the request and mail it in. If your browser doesn t allow you on to the site, have the veteran complete an SF 180 Request Pertaining to Military Records, and file it with the appropriate holder(s) of military records. Only request a copy of the dd214 at this time. The VA has a duty to request all of the veteran s military records. If you request the records from NPRC, the file is pulled and the VA does not have access to the file until the previous request has been fulfilled. This slows down the claims process. If the veteran has been out of service for a lengthy period of time, the veteran s military treatment records (if they exist) will be at the VA. Otherwise, the records will be with the appropriate military service. The NPRC sends the records fairly quickly (often in less than two weeks). The military services are a bit slower. Any initial claim for benefits submitted to the VA must have the dd214 attached to the file. Many veterans, especially those who are applying for pension, do not have their dd214s. Members of the National Guard and Reserve receive a dd214 when they are released from active duty after being activated, e.g. Iraq or Afghanistan. However, if they haven t served on active duty, they will get an NGB22 (Report of Separation and Record of Service), or an NGB23 (Retirement Credits Record), if they served at least 20 years in the National Guard or Reserve. The NGB22 is equivalent to the dd214 for purposes of retirement benefits but not for VA benefits. If all the servicemember has is an NGB22, he or she, more likely than not, will not be a veteran for VA purposes. All records should be at the National Personnel Records Center in St. Louis, but it is advisable to send a copy of the SF 180 to the state where the veteran was a member of the National Guard. Many veterans today have served on active duty in several military services as well as in the National Guard and/or Reserves. They may have also served in the National Guard or Reserves of several states. It is important to gather all of the veteran s military records from all sources. VA Accreditation Course, Michael L. Shea 2014 Page 20