“It’s about how we treat our veterans every single day of the year. It’s about making sure they have the care they need and the benefits that they’ve earned when they come home. It’s about serving all of you as well as you’ve served the United States of America.” – President Barack Obama
There are more than 70 million Americans who are currently eligible for veteran’s benefits. Unfortunately, many of them are unaware they are eligible or do not take advantage of the programs available. You owe it to yourself and your loved ones to get benefits you have earned and rightly deserve.
At Jones Elder Law, we are committed to helping the heroes who have sacrificed so much in service to our country, together with their loved ones, receive all the assistance they are entitled to. We have extensive experience in this area of the law, and can assist you and your family by explaining many difficult-to-understand aspects of the programs and benefits offered, particularly with regard to qualifying for long-term care. Every attorney working at Jones Elder Law is accredited with the Veteran’s Administration and able to handle cases all the way through the determination process.
We invite you to contact us today to learn how we can stretch your hard-earned money further by making every available resource available to you and your family.
One of the main reasons Jones Elder Law decided to become accredited through the Veterans Administration was the Service Pension Program. This program has proven repeatedly to be a game changing benefit that helps families stay home longer and maintain their independence and dignity while still receiving the additional care they require. The Veterans Administration Service Pension Program is available to help veterans who served 90 consecutive days with one of those days being during a war time period. With the exception of a limited window of time during Vietnam, your wartime service does not even require that the Veteran was present where the war was taking place. When the Veteran, or widow of a Veteran, need assistance with two activities of daily living or have a cognitive impairment that requires them to expend money on medical assistance they can be eligible for tax free assistance from the Service Pension program.
The benefit can pay a monthly tax free benefit up to the following amounts based upon the applicant’s status:
- Married Veteran $2,169
- Single Veteran $1,830
- Widow of Veteran $1,176
The benefit is what is referred to as a “means tested” benefit which means they will examine your income and your assets in determining your eligibility for the assistance. Under the current Veterans Administration rules there is no restriction on the transfer of assets. Accordingly, assets do not deny you the benefits because if you are over resourced there are legal strategies that can be employed to position the Veteran as eligible. Rendering a Veteran or widow of Veteran eligible for the Service Pension, usually comes down to the family’s income versus their recurring medical expenses.
At Jones Elder Law, we have helped numerous Veterans and widows of Veterans obtain the Service Pension to give them much needed assistance in their home or help them with their monthly payments at Independent Living, Assisted Living, Memory Care and even Custodial Nursing Homes.
If you would like to see how the Veterans Administration Service Pension could help you or your loved one, contact us now about coming in for a complimentary Vision Meeting.
Service Pension and the Transfer of Assets
We have been seeing instances both locally and nationally, through speaking with our colleagues, where Veteran Service Officers and various other individuals are advising Veterans that there is both a look back and penalty period for the Service Pension Benefit. Let me be clear, there is absolutely no such provision in the Service Pension Program. These Veteran Service Officers are at best misinformed or it is possible they are intentionally providing our Veterans with inaccurate information. The law as it stands currently is very clear. 38 CFR § 3.276(b) provides in pertinent part
“…A gift of property to someone other than a relative residing in the grantor’s household will not be recognized as reducing the corpus of the grantor’s estate unless it is clear that the grantor has relinquished all rights of ownership, including the right to control property.” (authority 38 U.S.C. 501)
The law clearly allows the Veteran to transfer his or her assets relinquishing their rights to such assets and thereby reducing the assets considered by the Veterans Administration for their eligibility. As long as the Veteran does not make such transfer to someone residing in their household or retain control of the assets, then such assets will NOT be counted. There is nothing within the existing law that speaks of a look back or penalty period on such gifts or transfers.
The concern over the look back and penalty period arises from the Veterans Administrations exploration of those concepts over the last several years. In early 2015, they published a set of regulations for notice and comment. If those regulations were implemented they would impose a “Medicaid like” three year look back and penalty period for transfers for less than fair market value. Unlike Medicaid where the penalty period divisor is based upon an approximation of monthly cost, the penalty period under the proposed regulations would use the individual benefit rate as the penalty period divisor. The net effect being that most Veterans that transfer a home or any other assets would be subject to a thirty-six (36) month waiting period. However, it is important to understand the Veteran’s Administration has done nothing to put these regulations in place. Additionally there is considerable question among legal practitioners as to whether or not such regulations are even within the Veteran’s Administration’s regulatory authority.
For a Vietnam era veteran, the Service Pension should not be the end of the Elder Lawyer’s conversation. If you are a Vietnam Veteran that was in the Republic of Vietnam, or exposed to Agent Orange in some other area, there may be a much better option than the Service Pension Program. For Vietnam Era Veterans, the Elder Lawyer should also be educating you about the Veteran Administration’s Disability Compensation Program. Under that program, the Veteran may be able to obtain a larger monthly benefit without any restrictions on their income or assets. For the right Veterans, the Disability Compensation Program is a significantly better alternative to the Service Pension Program.
Going back ten (10) years or so ago a wave went through the legal and financial industries. Lawyers, Financial Advisors, and Insurance Salesmen were educated about the Veteran Administration’s Service Pension and taught how to add that to their practice enhancing their ability to assist clients. This education resulted in members of all those occupations advising Veteran’s and assisting them in getting the Service Pension. With the passage of time these individuals became very proficient at getting their client’s qualified for the Service Pension Benefit. We are proud to count Jones Elder Law among the group that has assisted countless Veteran’s in obtaining these crucial benefits. Over time though, the makeup of our Veteran population is changing. We are seeing almost no World War II Veterans and fewer and fewer Korean War Veterans. As we begin to see the Vietnam Era Veterans, Jones Elder Law recognized the need to make a change in the discussion we were having with clients. Unfortunately, that does not seem to be the case across the group of people assisting Veterans from this Era. Many individuals learned the Service Pension Program and that is all they know. As the old saying goes, if all you have is a hammer then everything you see is a nail. Thus, too many Vietnam Era Veterans are being pigeon holed into a Service Pension claim that is denying them thousands of dollars in benefits they were entitled to receive. Not to mention the potential for an increased surviving spouse benefit for our married Vietnam Veterans.
So, what are we talking about. Any Veteran that served in Vietnam has by administrative ruling been exposed to Agent Orange. In addition, other Veteran’s who served during the Vietnam Era but not necessarily in the Republic of Vietnam may be eligible if they can demonstrate they were exposed to Agent Orange. Exactly how does the Agent Orange exposure change things? After years and years of litigation, the Veteran’s Administration has a list of illnesses that are by definition considered to be caused by exposure to Agent Orange. In making out your Veteran’s Disability Compensation claim there is no need to prove causation, that is presumed based upon the Veteran’s exposure to Agent Orange. If you were exposed to Agent Orange and have been diagnosed with one of the predetermined illnesses you skip past the causation element and are only left with determining what level of disability you have. An example would be Parkinson’s. Parkinson’s is among the group of illnesses on the presumptive list. Let’s say a client walks into Jones Elder Law’s office and is a Vietnam Veteran that needs care because of Parkinson’s. We are going to talk to them about both Service Pension and Disability Compensation. If they are able to get a 100% disability rating, which for many of the presumptive illnesses is very possible, they would be entitled to approximately $3,000 per month and you can stack additional monetary amounts onto that award for other things like erectile dysfunction, sleep apnea etc. There are even special compensation elements and additional benefits for dependents that can bring that award up to $5,000 possibly even $7,000 per month. Best of all it does not matter what the Veteran or their family have in income or assets. The Veteran is entitled to this award because of the disability alone. For a client who will not clearly receive a significant disability rating, we will often recommend they do the legal planning and actually apply for BOTH Service Pension and Disability Compensation. Then when the determinations are received from the Veteran’s Administration the client would choose the higher of the two awards. If later the client’s illness progresses, we can always go back and seek a determination of a higher percentage of disability and switch to a Disability Compensation award when it becomes more than the Service Pension. At Jones Elder Law since we work on a flat fee structure we are always there to assist the client with such future filings and there is never any cost associated with such an application.
Further, a Veteran who is able to get a 100% disability rating is also entitled to an enhanced benefit relating to long term care. That means if your Veteran client’s health declines to the point that they need custodial care, they would be entitled to payment of their full long term care expenses under the Veteran’s Administration program. Such payment is in addition to the Disability Compensation benefit which they or their dependents would still be entitled to receive. Getting to the 100% disability rating is very real possibility for the clients we serve, so you can see how much better off a family in such a situation would be economically.
It is also important to understand the effects of Nehmer v. U.S. Department of Veteran Affairs, the court rulings surrounding it and what it means to make a “Nehmer Claim.” This requires a bit of background information. After Vietnam, our Veterans were coming home and experiencing a variety of illness. They would seek compensation from those illnesses from the Veteran’s Administration and, as is not uncommon, be turned down. Keep in mind these claims were being made long before the creation of the presumptive illness list. This turned into a series of class actions that ended in what is commonly referred to as the Nehmer Ruling. If a Veteran demonstrates exposure to Agent Orange or was in the Republic of Vietnam, in which such exposure is presumed, and the Veteran’s Administration denies their claim as being related to exposure to Agent Orange they must put them and their illness on a listing. If at any point in the future the Veteran’s Administration adds their illness to the presumptive list, they are entitled to benefits back to the original date of their claim. So, for example the expectation is that Bladder Cancer and Parkinson’s Like Syndrome are going to be added to the presumptive list in the near future. Anyone who filed a claim with those symptoms after Nehmer and was denied based upon causation will be entitled to benefits from the date of their original claim. This can be a huge financial relief to a family that has been battling a debilitating illness throughout their lifetime.
How should this impact your client’s planning? If a Vietnam Era Veteran comes into one of Jones Elder Law’s offices with a demonstrable exposure to Agent Orange but a disease that is not currently presumptive, we will recommend they file BOTH a Service Pension and Disability Compensation Claim. Obtaining the Disability Compensation award without the presumptive status is considerably more difficult, however, if we are successful then we can take that larger award and be all the better for applying. If the Disability Compensation Claim is denied they will be placed on the listing under the Nehmer ruling AND they should still be approved for the Service Pension getting anywhere from $1,000 to $2,100 per month in tax free benefit.
Unfortunately, Disability Compensation claims are outside the scope of what many people serving our Veteran community have been trained to handle. It is very important that those working with Vietnam Veterans understand the Disability Compensation Program and how it should be interplayed with the Service Pension. They need to be staying up on the presumptive illness related to Agent Orange so they can advise the clients walking through their doors. At Jones Elder Law we are committed to being that kind of service provider to our Veteran Clients. We are proud to say we have helped numerous Vietnam Era Veterans and their Surviving Spouses obtain benefits under the Disability Compensation Program and look forward to helping many more.
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