Should I Obtain Help to File a VA Benefit Claim?
Filing a claim for VA disability benefits is a complicated process, even when the claims seem straightforward. Even though the VA makes basic claims forms available, we highly recommend that anyone making a benefit claim obtain assistance and guidance from an accredited attorney, claims agent or veterans service officer. The process and forms can be confusing and any information omitted or completed incorrectly can delay the process by several months.
My Assisted living community referred me to someone who “helps” Veterans with disability claims. Can I use them to file a claim?
That depends. 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. Every person accredited by the VA receives credentials from the General Counsel. Ask to see their credentials or search for them on the General Counsels website http://www4.va.gov/ogc/apps/accreditation/index.asp. If they cannot provide their official VA credentials or you cannot find their name listed on the General Counsel’s website, avoid them at all cost! They are in acting violation of federal law.
My financial planner claims that he can help me with a claim because he uses a VA-accredited attorney to prepare the claim. Is this legal?
No, it is not legal. If a financial planner is providing you with advice regarding your estate in regards to filing for a VA disability benefit, obviously intent to pursue the benefit has already been expressed. Hence, the financial planner is providing advice on a claim which is prohibited (click here for ruling.) Also, a VA-accredited attorney may only be assisted by a legal intern, or staff under the attorney’s direct, physical supervision (38 CFR 14.629.) A financial planner is obviously none of these.
Can a remarried Spouse receive Death Pension benefits?
Generally speaking, No. The definition of “Surviving Spouse” is that of a spouse who was married to the Veteran at the time of his or her death and has not remarried. However, there is an exception to this rule based on when the second marriage occurred and when it was terminated. The rules are also different in compensation cases.
What about spouses that were separated at the time of death?
Spouses separated for the reason of “marital discord” are still eligible as long as they did not divorce.
Does the VA have a “look back” period as does Medicaid?
No. There is currently no look back period.
Does the VA count any financial assistance or gift I give to my parent as income?
Yes. However, the proper thing to do is to use your financial assistance to pay direct medical or living bills. Do not transfer the money into the claimant’s name. If you do, technically, it becomes income again and will be counted against the claimant thus reducing the benefit dollar-for-dollar. By paying the bill directly (like to an assistance living facility, for example), the gift falls under the definition of “private charity” (38 CFR 3.272(b)) and is not countable as income.
When does my claim become effective?
The Start Date of VA Disability Claims is 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 start date. This is called the retroactive payment. Subsequently, the VA will direct deposit your award or mail you a paper check if you have no banking account on the first of every month for the preceding month.
Is Pension the only VA Disability Benefit?
No. Absolutely not! In fact the Non-Service Connected Disability Pension (since January 1, 1976 called the “Improved Pension” as opposed to the Old Law Pension or Section 306 Pension), is by far the smaller of the two VA administered Disability Programs. There are over 10 million Veterans on the Service Connected Compensation Program and only about 375,000 Veterans on Pension! Service Connected Compensation is harder to prove legally but it can provide over twice the amount of monetary benefit based on total disability (the inability to hold or seek gainful employment due to the disability.)
Written by Kevin Pillion, Attorney at Law, Founder of the Life Planning Law Firm, P.A. in Sarasota, Florida. Attorney Pillion and his firm are Featured in ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources to help families plan for and deal with the issues of Aging.