Frequently Asked Questions
There are so many misconceptions about VA disability benefits, we have added a FAQ page for your convenience. The answer to every question has a citation showing where that issue is addressed in rule, regulation or VA policy. Feel free to Google the citations for more information!
General Eligibility - "Just who can even consider applying for benefits?"
- A veteran, a financial dependent, a parent or the un-remarried surviving spouse of a Veteran may be able to receive disability benefits under the Compensation or Pension programs.
- A Veteran is someone who served at least 90 days of active duty federal service (exclusive of active duty for training) or completed the term of service for which they enlisted. A Pensioner must have served at least one day during wartime period.
- A Dependent of a Veteran is usually a child under the age of 18 or who became permanently disabled before age 18.
- Parent(s) of a veteran who are dependent upon him/her for financial support may be paid additional benefits. Dependency of a parent is based on need. Both the parental relationship and dependency of the parent must be established. Like Pension, this benefit is based on financial need.
- An un-remarried Surviving Spouse is someone of the opposite sex who was legally married to the Veteran at the time of his or her death and has not remarried.
Special Pension Eligibility - "My Dad is a Veteran and is in good health. Mom is the one who needs help. Are there any benefits available for her?"
- Not in her own right. As long as Dad is alive, all benefit rights are vested in him. However, there is a special condition that may apply in Pension cases. If you have read any of our preceding articles, you probably know that Pension is a needs based program. The VA counts the total gross household income (Mom and Dad) but you also get to deduct the total household out-of-pocket medical expenses. So, let's assume Dad has no need for medical assistance and therefore does not qualify for the special, additional aid and attendance benefit. If the household is being pauperized due to Mom's medical expenses, then we would evaluate Dad's situation as a Basic Rate Pension case. This means that because Mom's medical expenses are taking up all or most of the family's income, Dad is guaranteed a minimum monthly income as a wartime veteran. If the family's net income is less than the Basic Pension Rate for a Veteran with one dependent, the VA will pay the difference between the family net income and the amount guaranteed by law. This means Dad could be eligible for up to $1,437.00 per month in benefits. (2018 rate).
Aid & Attendance - "Just what is aid & attendance?"
- Aid and Attendance is a "special monthly benefit" that can be added to either Service Connected Compensation or Non-Service Connected Pensions provided (1) the claimant is rated by the VA as 100% disabled (cannot hold substantially gainful employment due to their particular disabilities) and (2) meets the criteria specified in 38 C.F.R. 3.351 and 3.352. Simply put, the claimant has to have a physical or mental disability such that they require the regular assistance of a third-party care provider to safely undertake their basic, daily activities of daily living.
Aid & Attendance - "Can I just apply for aid & attendance?"
- Well, yes and no. Aid and Attendance cannot be applied for except as a special additional benefit to Compensation or Pension. The claimant has to be eligible for each of these disability programs at the 100% level. If the physical or mental disability also exists, then Aid and Attendance can be added to either program. You cannot apply for Aid and Attendance without also being eligible for Compensation or Pension. However, if you have been awarded Basic Compensation or Basic pension, Aid and Attendance can be added to your benefit later through a claim for increase.
Aid & Attendance - "Are there special rules for adding aid & attendance to Compensation claims?"
- Yes. The need for aid and attendance (the physical or mental disabilities) must be directly related to the service-connected disabilities. For example, a Veteran has been awarded 100% disability due to a broken back suffered while on active military duty in Korea. However, the actual need for aid and attendance is due to the onset of Alzheimer's dementia. The VA will not award aid and attendance because the Alzheimer's dementia is not connected to the service-connected broken back.
Pension - "What is the Non-Service Connected Pension?"
- The best way of conceptualizing Pension is that the VA is guaranteeing an eligible wartime Veteran or the un-remarried surviving spouse of a wartime Veteran a minimum monthly income. After allowable medical expenses are deducted from the total gross household income, the remainder is called Net Income for VA Purposes. The VA will pay the difference between the Net Income and the amount guaranteed by law. Theoretically, depending on the math, you could be awarded as little as one dollar or the maximum amount. Note: there are three "pension" programs on the books: (1) Old Law, (2) Section 306 and (3) Improved Pension. Only Improved Pension has been awarded since January 1, 1979.
Pension - "What does the VA Consider as Total Disability?"
- For VA purposes, a veteran is considered permanently and totally disabled if the veteran is a patient in a nursing home for long-term care because of disability; is disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Social Security Administration; is unemployable as a result of disability reasonably certain to continue throughout the life of the person; is suffering from any disability which renders it impossible for the average person to follow a substantially gainful occupation, provided it is reasonably certain that such disability will continue throughout the life of the person; or, if any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. (38 C.F.R. § 3.3(3)).
Financial Issues - "The VA requires Pension applicants to prove "limited net worth." What does that really mean?"
- For VA purposes, the term "limited net worth" means the sum of net income (gross income less deductible medical expenses) plus assets contained in the claimant's estate such as checking, savings, CDs, IRAs, etc. The principal place of residence is not considered in net worth calculations. Automobiles are also not considered countable for net worth calculations. VA's rules simply state that a subjective decision will be made by the claim adjudicator on whether or not (in their opinion) it is reasonable that a portion of the claimant's estate should be considered for their maintenance before VA provides benefits. If the VA considers the size of the estate to be excessive, the claim will be denied. However, once the size of the estate is reduced, a new claim may be filed.
Assets - "How much can I have in the bank and still be eligible for Pension?"
- Good question and one to which there is no clear answer. There is a myth that a claimant can have up to $80,000 in assets. This is not true. This myth is a misinterpretation of the VA Adjudication Procedures Manual, M21-1MR, V.iii.1.J. This policy states that if you have over $80,000 there is a justification process you must undertake an administration review to justify the need; however, it further says that any amount of asset under $80,000 can be a bar to benefits. The instructions given to VA adjudicators is that the older a claimant is, the less estate they are expected to have. The actual regulation states that a claimant for Pension must demonstrate a "limited" estate. But, the VA doesn't bother to define what "limited" means. In practice, the VA policy is simply that the adjudicator will make a subjective decision on whether or not what you have is too much or is it reasonable that the assets are sufficient to live on for some period of time. In short, this area is more an art form than a science. It takes someone with a great deal of previous experience to look at the total financial situation of the claimant and determine what amount of total estate the VA is likely to accept.
Assets - "Can I create artificial Pension eligibility by giving away part or all of my estate?"
- This is a very tricky issue. Under the authority of 38 C.F.R. 3.276(b), a benefit claimant can make an unrestricted gift from their total estate to a third-party. Provided the gift is a pure gift, i.e. all control over the gift is lost by the person giving the gift, the gift no longer is considered part of the countable estate and does not have to be reported to the VA. Please note: the issue in law is "loss of control." In several appellate cases (cases that have been appealed to the Board of Appeals or the Court of Appeals for Veterans Claims,) instructions to the recipient pertaining to how the gift is to be used has been considered "control." Therefore, the asset was always a part of the claimant's countable estate. Plus, the intent of Congress in creating the Improved Pension was to provide a minimum degree of financial security to wartime veterans, their dependents and surviving spouses. Creating a financial need by giving away your estate is currently legal but in most cases is also certainly unethical.
Assets - My attorney says I can buy an annuity or put my estate in an "irrevocable" trust. Can I do that?"
- Of course you can. And there are often good reasons to do so. However, buying an annuity or creating a so-called irrevocable trust to create artificial VA eligibility is not one of them! Many irresponsible insurance agents, financial planners and elder law attorneys prey on elderly Veterans and their families by offering to help them obtain VA benefits by hiding assets from the VA. Their purpose in helping Veterans is to gain a sales commission from the insurance product (annuity) or to sell expensive legal services (trusts.) The vice chairman of the Senate Special Committee on Aging, Sen. Wyden of Oregon refers to these individual as "pension poachers" and the Governmental Accountability Office (GAO) issued a scathing report on June 6, 2012 documenting this abuse. Because of the abuse, Congress is currently considering a bill to place a three-year prohibition on the gifting or transfer of assets before applying for Pension.
Marriage - "My father was physically abusive to my mother and she divorced him. Is she eligible for Death pension benefits?"
- Unfortunately, no. The legal definition of a "surviving spouse" is someone of the opposite sex who was legally married to the Veteran at the time of his or her death and has not remarried. A divorce for whatever cause or reason severs the marital relationship and the mother is not legally a "surviving spouse." This issue has been appealed numerous times before the Board of Appeals and the denial of the divorced widow's claim has always been upheld.
Marriage - "Are there any exceptions to the rule?"
- No, but there is a rule that allows a remarried widow to claim benefits from the first spouse under certain conditions. If the first spouse was a Veteran and that marriage ends due to the death of the Veteran and the widow remarries a non-veteran, if the second marriage ends due to an annulment, divorce or death between January 1, 1979 and November 1, 1991 (due to a clause in the Balanced Budget act of 1979), then the widow can claim benefits based on the service of the first Veteran even though there was a second marriage. This is the only exception to the rule. See 38 C.F.R. 3.55.
Military Service - "My dad was a sailor in the Merchant Marine during World War II. Is he considered a Veteran."
- If your dad was at sea for at least 90 days between December 7, 1941 and August 15, 1945, he is considered a Veteran by the VA and is fully entitled to benefits if he meets the other requirement of law. Note that World War II military service for merchant sailors ends on August 15, 1945 while for all other services the end date is December 31, 1946.
Military Service - "Are there any exceptions to having to have served at least 90 days of active, federal military duty for Pension eligibility?"
- There is one. If the Veteran was discharged due to a service connected injury or the aggravation of a pre-existing condition, the service performed is considered adequate for Pension eligibility consideration. However, the discharge documents must clearly state that it is a medical discharge. In World War II the unsophisticated state of military record keeping and the uncertainty of proper language may mean that the discharge papers do not fully and accurately reflect the actual medical reason behind a discharge. This is unfortunate but it is often the case.
Military Service - "My dad served in Vietnam. Is there anything I should know?"
- Potentially, Yes. If a veteran served “in-country” (including “brown-water” navy) from February 28, 1961 to July 7, 1975, they are considered in law to have been exposed to a family of toxic herbicides commonly called “Agent Orange” or AO. The VA, with the assistance of the National Institutes of Health, have identified 14 common diseases (Prostate Cancer, Parkinson’s Disease, Type II Diabetes, Ischemic Heart Disease, Respiratory Cancer, etc.) as being directly caused by AO exposure. Any veteran who served in Vietnam should contact their nearest VA Medical Center for an Agent Orange Registry Exam which will look for signs of these diseases. Importantly, if a Vietnam veteran has been diagnosed with one or more of these diseases; it is automatically considered a Service Connected disability and eligible for Compensation benefits. If, due to the severity of AO-presumed diseases, a veteran cannot “seek, gain or hold substantially gainful employment,” regardless of age, the VA is obligated under law to rate them totally disabled (100%) due to total individual un-employability. This can provide substantial financial assistance.
Medical Deduction - "My mom lives in a non-state licensed retirement community. Are her room and board fees deductible?"
- Perhaps. Under federal rules, only out-of-pocket medical expenses can be deducted from gross income for pension eligibility purposes. 38 C.F.R. 3.272(g). For many years the VA had no clear policy as to when room and board fees at any type of residential facility, licensed or not, could be allowed as medical deductions. In the mid-2000s, the VA finally determined that room and board fees as well as direct care fees at licensed assisted livings were fully deductible. However, the issue at independent / retirement / senior living facilities or communities remained unanswered. After much prodding, the VA issued a policy declaration on October 26, 2012 providing guidance to adjudicators regarding this issue. Fast Letter 12-23. The Fast Letter stated that room and board fees at non-licensed facilities would be allowed as deductions provided (1) there was a proven need for the special aid and attendance benefits, (2) the attending physician makes a certain statement in writing providing evidence of need (there is special language that must be employed in this statement), and (3) there is a paid third-party providing "custodial care." The VA defines custodial care as assistance with two or more basic activities of daily living in the list found in 38 C.F.R. 4.123a, Subnote 3. This is a very abbreviated list but is the only place in Title 38 that basic activities of daily living are defined at present. Note that the third-party care provider does not have to be a professional provided by a licensed agency. It may be an individual or indeed, a family member. However, the third party must be paid for their services. A spouse may not be a paid third-party care provider as they do not meet the definition of "third party." If all three conditions mentioned above are met, the room and board fees are fully deductible. Also see the Adjudication Procedures Manual, M21-1MR, V.iii.1.G.42. d.,h., and m.
Getting Assistance - "Who can help me with a benefit claim?"
- Federal law requires anyone assisting with a claim for VA benefits be accredited by the VA General Counsel (Title 38 USC §5901 and 38 CFR 14.626.) The VA only recognizes three types of individuals that can be accredited: attorneys, claims agents and Veteran Service Officers (38 CFR § 14.629.) Every person accredited by the VA receives credentials from the General Counsel. Ask to see credentials or search for them on the General Counsels website under the heading "accreditation search." ( http://www4.va.gov/ogc/apps/accreditation/index.asp) If the person offering to assist cannot provide their official VA credentials or you cannot find their name listed on the General Counsel’s website, then you should look for someone who is accredited. It is a violation of federal law to assist someone with filing a claim for VA benefits if you are not accredited by the VA. This also applies to individuals who state that, although they will help prepare or give advice on a claim, the actual claim is filed by an individual who is accredited. Even to give advice or assist on a claim requires VA accreditation. This law was enacted in order to protect veterans and their families and to assure that veterans have qualified representation.
Getting Assistance - "Why do I need someone's help? Can't I do it myself?"
- Really, this isn't a very good idea! Filing a claim for VA disability benefits is a complicated process, even with so-called "simple" claims. Even though the VA makes basic claim forms available on-line and through its automated VONAPP system, the process can be daunting. Essentially, you can say anything you want on the claim application; however, federal regulations require that some (not all) of the information you provide be supported by evidence. It is also helpful for this evidence to be in a certain format expected by the VA. Not knowing what evidence is legally required or providing evidence that is not needed, can substantially delay the adjudication of the claim. Getting the proper information and evidence to the VA in the initial package (especially under the provisions of the Veterans Benefit Improvement Act of 2008) can often reduce the waiting period on Veterans claims to less than 60 days. 38 C.F.R. 3.161.
Getting Assistance - 'Isn't it illegal to charge a fee for helping someone with a VA claim?"
- Absolutely true! Not only is it illegal to charge a fee, it is also illegal to accept a gift or a gratuity for assisting someone.
Getting Assistance - "If that's the case, why does your firm charge a fee?"
- Excellent question! First of all, let us say that we absolutely do not charge any sort or kind of fee for assisting with a claim or representing one of our clients before the VA. Period. However, in 2004, the question of when attorneys can charge for helping Veterans was posed by Rep. Joe Evans (who at that time was the Ranking member of the House Committee on Veterans Affairs) to the VA General Counsel Tim McLean. General Counsel McLean replied to this inquiry by official letter on May 24, 2004. Essentially, the VA's position is that attorneys provide good and valuable assistance and advice to individuals seeking to become benefit claimants. The VA calls this advice and assistance a "Pre-Filing Consultation" and even describes what they imagine would be contained in that type of consultation. As long as this consultation occurs before an individual actually becomes a Claimant for a VA benefit, it is perfectly legal to charge a fee for these services. The term "Claimant" is defined in Title 38 in 38 C.F.R. 14.627(h) : "Claimant means a person who has filed or has expressed to a representative, agent, or attorney an intention to file a written application for determination of entitlement to benefits provided under Title 38, United States Code, and implementing directives." As long as the consultation occurs before an individual becomes a Claimant under this definition, it is perfectly legal to charge a fee for legal services as these services occur outside the jurisdiction of Title 38. We charge absolutely no fee of any kind after one of our clients becomes a Claimant.
Getting Assistance - "So why should I engage an attorney?"
- Again, a great question. We feel the answer is straightforward. Applying for benefits is a legal process. You are essentially petitioning a federal administrative law body (the VA) to grant you financial benefits. It's all about law! The important thing is that when you apply, you want to make sure (1) you have a case that will result in a positive decision from the VA before you apply; (2) make the application in such a way so that the VA has every scrap of evidence and paperwork in the proper format to expedite a quick decision (38 C.F.R. 3.161); and (3) you want someone to take a proactive approach to assisting you obtain your benefits. If you want someone to just file some basic forms with the VA and then leave everything else up to you - including the annual medical expense reports! -and for your claim to take a year or longer at the VA, then you do not need an attorney. While no one can promise what the VA will do once they have a claim, you can be assured that EVLAG files a Fully Developed Claim on your behalf. If the VA does what they are supposed to do, your claim will be completed in a few months or even weeks. If you want true, complete representation before the VA for the rest of your lives, EVLAG is the right way to go!
Getting Assistance - " If I want to apply, wouldn't it be smarter to go to my local VA office for help?"
- First of all, the VA does not maintain local offices, only regional offices which are usually one per state. What you are likely referring to are County Veterans Service Offices. It is important to know that CVSO’s are county government employees who are accredited as service officers by VA. They do not work for the VA. CVSO’s do not charge a fee for their assistance and are available to everyone in the county. One needs to exercise caution when using CVSO services. For example, a common error is for the claim to be marked for consideration under both Service Connected and Non-Service Connected programs. This process can take well over a year due to VA backlog and trouble getting copies of military medical records from the National Personnel Records Center in St. Louis. CVSOs are trained and required to assist veterans and their families on a wide breadth of issues. They are not able to narrow their practice area like attorneys can. A narrow practice scope can allow attorneys to acquire knowledge and experience in that specific field which can be an asset to their clients. EVLAG, for example, only practices in the area of VA disability law and our staff has gained years of experience in this area. Additionally, an attorney is able to assess the evidence of a particular case and provide a legal opinion as to whether a potential claimant’s circumstances meet the eligibility requirements for benefits prior to submitting the claim to the VA. This is not a service the CVSOs can provide. CVSOs are not attorneys and they are trained and instructed not to render such opinions. There are instances where CVSO’s file incomplete claims relying on the VA to provide assistance under the Veterans Claim Assistance Act of 2000. This can substantially delay a benefits claim.
Claims - "When do I start getting money after my claim is approved?"
- The effective date of VA disability awards is the first day of the month after the claim was received by the VA. It does not start when the VA actually receives the claim. If it takes the VA 4-5 months to adjudicate your claim, your first award check will be for all of the months from the effective date. This is called the retroactive payment. Subsequently, the VA will pay benefits on the first of every month for the preceding month. It is important to note that if the VA proposes to find the claimant incompetent to handle their own financial affairs, this retroactive payment will be held by the VA until a fiduciary is appointed.