Beyond the Veterans' Benefit Known as "Aid and Attendance", 1115 ALBJ, 76 The Alabama Lawyer 374 (2015)
| Author | R.F. Ben Stewart, III, J. and Douglas I. Friedman, J. |
| Position | Vol. 76 6 Pg. 374 |
R.F. "Ben" Stewart, III, J. and Douglas I. Friedman, J.
According to the Department of Veterans' Affairs, more than 413,000 veterans live in Alabama. Of these, more than 317,000 are wartime veterans.1 In the November 2013, Alabama Lawyer, William G. Nolan wrote an article about the benefit known as "aid and attendance." The article described the tax-free benefit that assists qualifying wartime veterans and their surviving spouses with unreimbursed medical expenses, such as in-home care or assisted facility expenses. This article reviews recent developments in the area of "aid and attendance" and will highlight a handful of the many other VA benefits that may be available to veterans and their families.
Improved Pension-Aid and Attendance Update
The 2013 Alabama Lawyer article noted that federal legislation, pending at that time, sought to impose limitations on eligibility, including a look-back on all transfers made by a veteran or his/her spouse within the three-year period immediately preceding filing of a claim. Although the look-back bill failed to pass Congress, the Department of Veterans' Affairs has decided to implement the rules through its rule-making authority. On January 23, 2015, the Department issued proposed regulations to 38 CFR 3.276.2 The period for public comments ended March 24, 2015. More than 900 comments were made and published on www.regulations.gov. About 95 percent of the comments opposed the new rule.3 Many groups, including the National Academy of Elder Law Attorneys, question whether the VA has the authority on its own to implement the look-back period without legislation.4
Veterans' Disability Compensation Benefits
Overview
The Department of Veterans' Affairs provides disability benefits for veterans who suffer an injury or disease while serving in the military. The requirements are threefold: 1) an injury or event in the service, 2) a current medical condition and 3) a medical nexus between the two. Note that VA disability compensation differs from the VA Improved Pension "Aid and Attendance" benefit which is needs-based and does not have to be related to a service-connected injury while in military service. While the three requirements are simply stated, the rules are often arcane and complex-as well as counter-intuitive. Many veterans may be surprised to find out that they are eligible for disability benefits.
In general, VA benefits are excellent. A 100 percent disability rating qualifies for about S2.800 per month tax-free. VA disability benefits include the same cost-of-living increases as Social Security and if the veteran is married and/or has dependent minor children, he will receive a modest additional benefit for them.
Most disability benefits, however, are not 100 percent, but are partial benefits. For example, a 10 percent rating would provide about SI25 per month in 2015. The rating percentage depends on the severity of the medical condition.
For an injury to qualify, it must have occurred during active duty. It does not have to occur during combat, however. So, if the veteran falls down a flight of stairs and hurts his back-while he is on active duty-the back injury will be covered.
For a disease to qualify, it must usually have started during military service. For example, if the veteran is diagnosed with diabetes while on active duty, the veteran will be compensated.
Reserve and National Guard duty may qualify as active duty, but there are many restrictions that greatly limit the availability of benefits.
There is no time limit for applying for benefits, but benefits will usually be payable only from the date of the application. If the service-connected medical condition worsens later, the veteran can apply for an increase in benefits.
Presumptions
Benefit calculations are particularly complicated for Vietnam veterans. For example, veterans who “served” in Vietnam between January 9, 1962 and May 7, 1975 are eligible for several benefits. “Served in Vietnam” generally means that the veteran had his boots on the ground in Vietnam–even for a short period of time–such as to change planes. If a veteran “served” in Vietnam, and later suffers from one or more of a long list of diseases–such as ischemic heart disease, various cancers and diabetes–the veteran is eligible for benefits.
The VA’s rationale for this coverage presumes that the Vietnam veteran has been exposed to Agent Orange and presumes that certain diseases were the...
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