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What To Do With A Denied VA Application – Part 1

March 30, 2015

by Lawyers With Purpose with No Comment VA

You gathered all the necessary supporting documents. You confirmed that your clients meets the income and asset eligibility limitations. You completed all the forms. You obtained all the necessary signatures. You have dotted every “i” and crossed every “t”. You have filed your fully-developed VA claim with the appropriate pension center and have confirmed receipt. Now you just sit back and wait for the approval letter and your client’s praises to rain down on you right? Most of the time, yes, but not always. It can be discouraging when you get a denial letter, especially when you know the claimant is eligible and should have been approved.

What’s the next step? First, read the reason given for the denial and determine whether it is accurate. Denials may be due to an error in adjudication, but they can also be legitimate denials based on unknown, additional income and/or assets. Once you determine that a denial is, in fact, in error, then an appeal is warranted even if they are notoriously lengthy ordeals stretching into 2 – 4 years. The first level of appeal in VA parlance is known as a Notice of Disagreement (NOD). You have one year from the date of the decision letter to file a notice of disagreement. There is no particular form for the NOD; a letter or filing VA Form 21-4138, Statement in Support of Claim, declaring that you are filing an NOD is sufficient.

There is however another, lesser-known step before the NOD and this is a Request for Reconsideration (RFR). A request for reconsideration involves new evidence or perhaps evidence already submitted but not considered by the VA. The objective is for the pension center to re-open the decided claim and reconsider their decision in the light of this new evidence. RFRs are generally processed much quicker than appeals as they stay in the pension center where the claim was originally adjudicated. Again, there is no particular form that is used for the RFR. A letter or statement on VA Form 21-4138 can be submitted requesting reconsideration along with the additional evidence that you would like the VA to reconsider. However the disadvantage of the RFR, is that if it does take more than a year for reconsideration, you miss the window of opportunity for filing the appeal. For this reason Victoria Collier, CELA, and co-founder of Lawyers With Purpose, recommends filing a statement that includes both an NOD and an RFR. Best case scenario: Your claim is reconsidered and corrected within a relatively quicker time frame. Worst case scenario: the NOD begins the appeal process. More details regarding the appeals process will be provided in a future blog titled, “VA Application DENIED – How You Should Appeal”.

Appeals take a while, but they are worth it when you have a legitimate claim. A recent example from The Elder & Disability Law Firm of Victoria L. Collier, PC makes this clear. The claimant in this case was a married vet who was approved for VA Improved Pension, but for less money than expected and warranted due to his deductible medical expenses. We filed a Notice of Disagreement and a Request for Reconsideration on September 13, 2011. The award, granting all benefits sought on appeal, was dated February 6, 2015 – more than 3 years later. A happy ending despite the time and trouble that the appeal can take.

If you want to learn more about VA Benefits Planning to build or enhance your existing estate or elder law practice join us for 2.5 days and learn all you need to know about Asset Protection, Medicaid & VA at our Practice With Purpose Program. If you practice in today's estate panning environment, you do not want to miss this!

Join some of your most successful and forward-thinking peers from around the country at this program where we will discuss, discover, and provide solutions for Asset Protection, Medicaid & VA Benefits Planning.

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation, Chair, National Academy of Elder Law Attorney’s VA Task Force, Author of 47 Secret Veterans Benefits for Seniors, Author of Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit, Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC, Co-Founder of Lawyers With Purpose, LLC.

The VA Rejected My Claim

December 23, 2014

by Lawyers With Purpose with No Comment Legal Technical VA

The attorney of a wartime veteran filed a claim for pension with aid and attendance, just like he had done many times before, using VA Form 21-526, Veterans Application for Compensation and/or Pension. Yet, this time was different. His claim was denied for submitting the wrong form.

How can this be the wrong form? It says right in the title of the form, Veterans Application for Compensation and/or Pension. Pension is the benefit being sought. The most recently published form is November 2014, thus, the form itself is not outdated.

I cannot answer the above question. What I can share to all advocates who are accredited by the VA to assist veterans with claims is that the VA prefers, and is apparently requiring, that all claims be submitted through the Fully Developed Claims (FDC) process. There are specific application forms for this.

For Veterans filing a claim for service connected disability benefits, use VA Form 21-526EZ, published in January 2014.

For Veterans filing a claim for Improved Pension (which may include aid and attendance), the VA Form 21-527EZ is the appropriate form. It was published in August 2011, which is still the most current form to use.

For Widows of Veterans, the 21-534EZ must be used, which is dated June 2014.

Unfortunately, what can be confusing is that the other, non-FDC application for widows, 21-534 (without the EZ), is also still available to file and was also published on June 2014. Like the 21-526, which permits a person to file an application for pension, the 21-534 (without the EZ) may be rejected because it is not on the EZ form. As long as the claim is filed on a currently available, currently published (not superseded) form, then the VA should accept the claim, even if not on the EZ form. Go to: http://www.va.gov/vaforms/ to obtain the most current forms available.

What do you do if you filed an application for benefits but it was rejected or denied for having been filed on the “wrong” form? Submit a new application using the correct form. The good news, per the current law, is that even though the wrong form was completed, filed and rejected, the VA must still treat that “communication or action” as an “informal claim” for benefits. The advantage of “informal claim” recognition is that the filing of an informal claim “locks in” the eligibility date for approval of benefits. Thus, even though it feels like you are starting over with the claim, the approval should be retroactive to when the original claim was filed, albeit on the incorrect form. Time in processing the claim may be lost, but not the actual benefit itself during that time.

For more information on the day-to-day operations and expectations of the Veterans Administration, become a member of Lawyers with Purpose and attend our monthly training webinars, led by national Veterans Pension Benefits expert and co-founder of Lawyers with Purpose, Victoria L. Collier, Certified Elder Law Attorney, through the National Elder Law Foundation.

Victoria L. Collier, Certified Elder Law Attorney, Fellow of the National Academy of Elder Law Attorneys, Co-Founder, Lawyers with Purpose, LLC, and author of 47 Secret Veterans’ Benefits for Seniors…Benefits You Have Earned but Don’t Know About.

Victoria Collier has been the leader at teaching lawyers how to help Veterans. She is providing the 3 hour accreditation training on February 4, 2015, in Charlotte, North Carolina for just $249!

Even if you have had the initial accreditation, this course will also meet the on-going accreditation requirements. Each lawyer who is accredited must continue to take 3 hours of CLE every 24 months. In addition to the required information, Victoria will bring you up to date practices by the VA.

If you are just a beginner or a seasoned VA practitioner, you are certain to learn something. And, because it is live training, you will have the opportunity to ask questions. Don’t miss this opportunity! To register contact Kyle Russ at kruss@lawyerswithpurpose.com. Seats are limited so register soon.

** Before attending the course, you must have submitted an Application for Accreditation, VA Form 21a, to the Office of General Counsel and received approval.**

A Day At The Beach: D-Day, June 6, 1944

May 29, 2014

by Lawyers With Purpose with No Comment VA

When I think of a day at the beach, I think of umbrellas, children, swimming, and sunshine. June 6, 1944 was a very different picture at 6:30 a.m. when the “boys” from the 1^st Infantry Division arrived riding Higgins boats on Omaha Beach. It was overcast and storming. The aircraft support troops could not fly in as planned to via an air raid, for fear of hitting the landing craft. The fleet of floating tanks that were expected to be waiting on the beaches, had sunk into the ocean five miles from shore, with only two reaching their destination.

In the water, as well as on the sand, the troops encountered deliberately planted obstruction barriers to prevent the boats from reaching shore. The boats did reach the shore, albeit east of their intended landing place due to strong currents. Many of the men had to wade 50 – 100 yards in water up to their necks, carrying full gear, with guns held overhead, under heavy gunfire. Once reaching the sand, it was open-fire as the troops tried to make it to the multistory-high cliffs and scale them. The battle at Omaha beach took six hours before the Allied forces penetrated a gateway to get through, leaving carnage like no other. The visual I was provided by another was described as “miles of khaki and red” blending the blood with sand.

When I stood there looking out, the beach was quiet and beautiful. The weather was uncharacteristically sunny and warm with clear skies. The only artifacts left are damaged bunkers, grass-grown bomb craters, and the beaches with gorgeous green and blue water flowing in and out. My eyes were trying to see the tankers, ships and soldiers that remained underneath.

My time there was limited, but the memories are forever strong. I could have just turned and left, headed to the next historical site. But I couldn’t. I had to pause and silently say a prayer of honor for those who have served our country in all wars, and for their family members.

The men and women who have experienced war, as well as their families, change after their experiences. But those who study history in-person, not just in books, are changed too. I have always had an appreciation for my WWII clients. But the level of appreciation has heightened now that I have been able to visit the battle sights 70 years later.

Don’t just remember D-Day in years to come, experience it and honor it. My next article will highlight the interview I had with Judge James Hill, WWII veteran.

Victoria L. Collier, CELA, Elder Care Attorney, Co-Founder of Lawyers for Wartime Veterans and Lawyers with Purpose, Veteran, author of 47 Secret Veterans Benefits for Seniors and most recent book, Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit.

Lessons from LA Part 2 – Be Prepared, Persistent & Flexible

April 15, 2014

by Lawyers With Purpose with One Comment Legal Marketing Systems & Processes VA

A few weeks ago, I discussed my trip to Los Angeles to interview a big name – Betty White – for my TV show, Senior Salute. The topic of choice was how pets enhance the quality of seniors as they age. Betty White is a huge animal advocate. A date was set, then reset, then canceled.

Was I frustrated, upset and discouraged? YES! But, I decided to take the valuable lessons I learned and celebrate the courage it took to put myself out there and be vulnerable. How many times a day do you or your employees put yourselves out there? Each time you meet with a prospective client, meet with a new referral source, learn and implement a new practice area, like Veterans Benefits, have a difficult discussion about office policies with team members, and the list goes on. The fact of the matter is that we do it all day after day. But, we don’t recognize it or celebrate it. Often we only feel the pain of it.

Oh, I felt pain. I spent about $2,000 to fly to LA and stay in a hotel three time zones away. Leaving my children and out of the office not working for three days. Waiting for the call and the opportunity. Planning in advance, I purchased tickets to attend the live audience taping of Hot in Cleveland, the award winning show that Betty White stars in weekly. I didn’t want the entire week to be a loss. Because entrance is on a first come first seat basis, I wanted to ensure I got a seat so I showed up to the studio 3 hours early (in full stage make up, still with hopes of interviewing Betty). I was third in line, certain to get a seat. I was told to speak with the floor manager about getting VIP status so I could do a “meet and greet” with the cast after the filming. She turned me down, twice. Yes, twice. I was persistent. But, I was also polite. After all, I had a gift to give to Betty that I had carefully selected and purchased in Atlanta.

Once I realized I was not getting access, I felt sorry for myself for a moment and let the hurt and embarrassment set in. Then, I looked around and thought, “I can and will have a great night and enjoy the good of it all.”

What I learned, that we can all practice in our offices, is that:

1. When you want something, go for it. Make all preparations to succeed.

2. Put yourself out there and be persistent but polite. Know when to sit down and enjoy the show.

3. Be ready for anything, but also be ready to accept nothing in exchange of your efforts except the gratification that you took action. Not every at-bat is a home run. Sitting on the sidelines (once in a while) is enjoyable too.

4. Congratulate yourself for the courage it takes to make the decisions you make and take the actions you take. Many people only dream of things they want, but never take the first step toward achieving them.

5. Recognize that failure is sometimes the thrust you need to move forward. John C. Maxwell wrote the book, Failing Forward: Turning Mistakes Into Stepping Stones, that is worth a read.

If your marketing efforts or the implementation of Veterans Benefits into your estate planning or elder care law firm are not going as you expected, stop and praise yourself for the efforts you have made so far. Then, review and make some changes toward the result you want.

Victoria L. Collier is a Veteran and Certified Elder Law Attorney, Fellow of the National Academy of Elder Law Attorneys, Co-Founder of Lawyers With Purpose LLC, and author of “47 Secret Veterans’ Benefits for Seniors—Benefits You Have Earned … but Don’t Know About.”

P.S. I plan to write Betty White a personal letter, sending her the gift I got for her, and asking for an interview directly. Let’s see what happens!

If you want to come see what Lawyers With Purpose has to offer your estate and elder law practice, please join us in June for 2.5 days full of training on Asset Protection, Medicaid & VA Practice With Purpose program.

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How Inheritance Affects VA Aid & Attendance

March 27, 2014

by Lawyers With Purpose with No Comment VA

Receiving an inheritance can be bittersweet for various reasons. First, you are probably sad the person died. You are also probably happy to be receiving money you need or maybe just want. This windfall, however, can terminate your VA Improved Pension benefits, to include aid and attendance.

Wartime veterans are entitled to receive Improved Pension benefits if they are disabled (with non-service-connected disabilities), if they served at least 90 days on active duty, with one of those days during a period of war, and if they have limited income and assets.

An inheritance is considered “income” when received. The income is then annualized over twelve months. For example, an inheritance of $100,000 is received on February 25, 2014. The income is considered as income for VA purposes from that date through February 24, 2015. How does this affect the pension with aid and attendance?

Assume that the wartime veteran, who is 80 years old and living in an assisted living facility because he needs assistance with at least two activities of daily living, is receiving the maximum VA Improved Pension award for an unmarried veteran of $21,107 per year ($1,758 per month). Because the VA pension program is a means-tested benefit, the veteran’s income cannot exceed the maximum annual pension rate, which is $21,107 per year. Thus, the receipt of $100,000 of inheritance, when treated as income, exceeds the $21,107 per year and may cause the benefits to be terminated.

Is there a way to maintain the VA benefit even when receiving an inheritance? Yes, but only if the veteran’s annual income, to include the inherited funds, is reduced based on deductible medical expenses. When considering income for VA purposes, the VA must deduct all recurring, out-of-pocket medical expenses from the gross income received.

To stick with the example above, the 80-year-old veteran receives annual Social Security of $13,200 and no other income. Adding $13,200 to the $100,000 inheritance would total income equaling $113,200 for a twelve month period. During that same period, the veteran pays $7,500 per month for assisted living costs and another $2,000 per month for home health care because he is a fall risk and wanders at night. Thus, his monthly recurring, deductible medical expenses are $9,500 per month, which equals $114,000 per year. When subtracting the medical expenses from income, $113,200 (income) minus $114,000 (medical expenses), the veteran has negative annual income, and thus would continue to receive his VA pension with aid and attendance at the maximum rate.

Therefore, when a client receives an inheritance, know that it does not automatically disqualify him for the pension, but it may require offsetting medical deductions.

Lastly, if the inheritance will cause termination or reduction of benefits, can the veteran disclaim the inheritance so that it passes to someone else? For VA Improved Pension purposes, the answer is NO. Even if the veteran disclaims the inheritance, the veteran has the duty to notify the VA of his right to receive the inheritance. The VA will count the “expected” inheritance as income even if the veteran never personally receives the money or asset. Thus, disclaiming is not a viable option.

Can Veterans or Widows Receiving Service-Connected Disability Get Aid & Attendance?

March 20, 2014

by Lawyers With Purpose with No Comment Legal Technical VA

There are two different veterans benefits programs that provide tax-free income to veterans or their widow(er)s. Each of those programs can include a supplemental payment called Aid and Attendance. The question is, which one is your client eligible for and why does it matter?

When veterans have been injured while serving on active duty or have a resulting injury or disease because of their service (i.e. exposure to agent orange, post-traumatic stress disorder), they may be paid “compensation” for their loss. This is similar to payments in the private sector under Worker’s Compensation. The payment is determined based on the rating the veteran is awarded, which will be from 0% to 100% in increments of 10. The higher the rating, the more money the veteran receives. If the veteran has a rating of 100% or has been determined to be unemployable due to the service-connected injury, the veteran may receive additional income from the VA if the veteran is in need of regular assistance with activities of daily living (dressing, bathing, toileting, transferring, and eating). The additional money is called Special Monthly Compensation for Aid and Attendance. This is available to widows of veterans who are receiving, or could be eligible to receive, Death Indemnity Compensation (DIC).

Veterans who do not have service-connected disabilities may also receive tax-free income from the VA if they meet certain military, disability, and financial criteria. If the veteran served at least 90 days on active duty, one day of which came during a wartime period, and received a discharge greater than dishonorable, then the veteran is considered a “veteran” for the Improved Pension Program. In addition to the military requirements, the veteran must be disabled to receive Improved Pension, but the disability is due to factors not related to military service (i.e. a car accident, stroke, Alzheimer’s Disease, age). The VA defines “disabled” as being age 65 or above. Lastly, the veteran’s income and assets (to exclude a home, vehicles and personal property) must be under certain limits. Assuming the veteran qualifies under all standards, the VA will grant the veteran a monthly amount to bring the veteran’s income up to the VA’s definition of the poverty level (i.e. $12,652 per year for a single veteran or $16,569 for a veteran with one dependent, like a spouse). If the veteran needs the regular assistance of another person to help with activities of daily living, then the veteran can receive the Special Monthly Pension with Aid and Attendance, to increase the monthly amount paid by the VA (i.e. $21,107 per year for a single veteran and $25,022 for a veteran with one dependent). This benefit is available to widows of veterans as well, but the annual amounts payable are less.

When a client contacts you seeking the Aid and Attendance program, always ask if the client is receiving VA benefits for a service-connected disability. If so, and if the rating is 100%, unemployable, or the need for aid and attendance is related to the service-connected injury, then the veteran should seek aid and attendance under the service-connected compensation program. The payment will be higher than that of the Improved Pension program. Moreover, there are no income or asset limitations under the service-connected compensation program, which is usually the limiting factor of non-service-connected wartime veterans from being eligible for the Improved Pension with Aid and Attendance.

The Compensation and Improved Pension Programs are mutually exclusive. The claimant must choose one program or the other, or submit a claim for both and let the VA decide which would be more advantageous for the claimant. As the attorney, you can assist in speeding up the claims process by guiding the client in knowing which program would be best based on type of disability (service-connected or not), level of disability (100% or less), and income and asset levels.

The key to remember is that, whether the veteran or widow is eligible for either compensation or pension, both programs have a supplemental income benefit called Aid and Attendance. The claimant would decide under which program to apply for the supplemental payment.

Attorneys cannot charge to assist with a service-connected claim to increase benefits that would include aid and attendance because there has, presumably, been no adverse action. However, for pension claims, attorneys may assist and charge for fees related to estate planning and asset preservation that, by a result, creates financial eligibility for the Improved Pension Program. The lawyer cannot, however, charge to assist with preparation, presentation or prosecution of the application for benefits.

For more information on the VA Improved Pension Program, visit www.va.gov.

Open Enrollment Period To Expire Soon For Same-Sex Couples’ Survivor Benefits – Lawyers With Purpose

February 4, 2014

by Lawyers With Purpose with No Comment VA

In compliance with the repeal of the Defense of Marriage Act, the Department of Defense (DoD) has opened enrollment for the Survivor Benefit Plan (SBP) to retired military personnel who are gay and married. The Survivor Benefit Plan is income that a widow receives when that person's retired military spouse dies. It replaces, up to 55%, the pension the retiree was receiving prior to death. When the military retiree dies, the pension terminates. Without the SBP, the widow could face financial hardship.

Enrollment in the program is not automatic. Retirees or their widows must act before June 25, 2014 to participate in the SBP Open Enrollment Window.

DoD guidance is as follows:

Any claims to SBP spouse coverage for same-sex spouses of eligible participants of the SBP for periods before June 26, 2013, are not valid, as the Defense of Marriage Act was still the law and in effect prior to June 26, 2013. As a result, no SBP premiums for such coverage will be charged prior to that date. Further, no SBP annuity payments for such coverage will be paid for deaths occurring before that date.

Effective from June 26, 2013, a person who becomes eligible to participate under 10 U.S.C. 1448 (a)(1) and is married to a same-sex partner shall have the SBP program applied as for any other married couple under section 10 U.S.C. 1448, including the requirements for spousal consent for less than full annuity coverage of the spouse.

A person who was married to a same-sex partner upon becoming eligible to participate in the plan prior to June 26, 2013, and who had married that same-sex partner before June 26, 2013, shall have one year from June 26, 2013, to make a spouse election under 10 U.S.C. 1448(a)(3). Such person may not participate at less than maximum coverage described in 10 U.S.C. 1448(a)(3) without the concurrence of the person’s spouse unless they already had provided an annuity for a dependent child. If an election is not received on or before June 25, 2014, full spousal coverage shall be entered and the member shall be responsible for payment of premiums effective from June 26, 2013.

A person who is married to a same-sex partner on June 26, 2013 and has insurable interest coverage under the SBP may terminate the insurable interest coverage and elect spouse coverage. This election must be received on or before June 25, 2014.

A person who was not married upon becoming eligible to participate in the plan, but who married a same-sex partner before June 26, 2013, shall have one year from June 26, 2013, to make a spouse election under 10 U.S.C. 1448(a)(5). The election must be received on or before June 25, 2014, or the person shall be prohibited by law from making such election.

Generally, a person who is a participant in the plan and is providing coverage under the SBP for a spouse, who later does not have an eligible spouse beneficiary may, under 10 U.S.C. 1448(a)(6), elect not to provide coverage for a new spouse in the event of a remarriage.

For a person who enters into a same-sex marriage after June 26, 2013, the election to discontinue participation under 10 U.S.C. 1448(a)(6) must be made within one year of the remarriage. If a member does not discontinue participation, then pursuant to 10 U.S.C. 1448(a)(6), spouse coverage will resume effective on the first anniversary of the marriage.

If the remarriage took place prior to June 26, 2013, the participant has one year from June 26, 2013 to elect out of SBP. If a member does not make such an election within one year of June 26, 2013, then pursuant to section 10 U.S.C. 1448(a)(6), spouse coverage will resume effective no earlier than June 25, 2014.

Additionally, any such person falling within the parameters of section 10 U.S.C. 1448(g), shall have one year from June 26, 2013, or the date of any marriage subsequent to that date, to elect to increase the level of coverage under 10 U.S.C. 1448(g).

Now that marriage rights are recognized, more benefits are becoming available. However, some, like SBP, have open enrollment periods and deadlines to receive the benefits. To protect your spouse, ACT NOW. Lawyers may want to send a letter to all of their clients advising them of this change.