This webpage contains information on certain Department of Veterans Affairs (DVA) benefits (not including VA Home Loans, Health Care, or Education Benefits) and does not cover Iowa Department of Veterans Affairs information, the Iowa Veterans Home, and County Veterans Assistance.
A representative must be accredited to represent Veterans before the Department of Veterans Affairs (DVA) (www.va.gov). (I am an accredited attorney.) A veteran can ask someone to act as his/her representative. A representative can be an accredited member of an accredited organization, or an agent recognized by the VA or a licensed lawyer accredited by the VA. Agents and attorneys can charge for services only after the Board of Veterans Appeals (BVA) provides its final decision about the veteran’s application. VA Form 21-22 (for Veterans Service Organization agent) or VA Form 21-22A (for Individual appointment) must be filled out to ask the DVA to recognize a representative. VA forms can be located online. VA Forms
Eligibility for Veterans Affairs Benefits
1. Veteran: Must be a person who served in active duty uniformed services (could include Merchant Marine in some cases, commissioned officer of National Oceanic and Atmospheric Service or the Health Services. 38 U.S.C. 101(2), (21).
2. Discharged under “conditions other than dishonorable.” Verify with DD214. Not everyone leaving the military is discharged- could be separated with additional service required or retired and subject to recall, or a commissioned officer dismissal. A discharge alleviates any requirements for additional duty and provides eligibility for benefits. Discharge is defined under 38 U.S.C. 101(18).
3. Wartime Service unless an injury or illness incurred during active duty. The periods of War for VA Benefits Eligibility are listed in38 CFR Part 3 and 4.
a. The Vietnam era is listed as beginning on February 28, 1961 and ending on May 7, 1975, inclusive for veterans who served in the Republic of Vietnam during that period and beginning August 5, 1964 and ending on May 7, 1975, inclusive in all other cases. 38 U.S.C. 101(29).
b. The Persian Gulf War is listed as August 2, 1990, through date to be prescribed by Presidential proclamation or law. 38 U.S.C. 101(33).
4. Length of Service. For VA pensions , if enlisted before September 8, 1980, the veteran must have had active service. 38 U.S.C. § 1102(2). (Active service means either 90 days during one or more periods of war, 90 days of consecutive service with at least one days during a period of war, or one day of wartime service that results in a discharge for a service connected disability) 38 U.S.C. § 1521(j). If enlisted after 9/8/1980, the veteran must have completed either 24 months of service or the full period ordered to active duty.
Veteran’s Claims Process
1. File a Claim using VA Form 21-526. Note: File as soon as possible, as the claim can only be backdated to the date of the most recent claim. Be general with specific conditions as diagnosis may change over the years or disorders change nomenclature.
2. Dept. Veterans Affairs (DVA) has a Duty to Assist, gathering evidence to make a decision once a plausible claim is set forth, using reasonable efforts to gather evidence to support the claim. The veteran is sent to a Compensation and Pension Exam (C&P) usually at a VA Specialty Clinic. It can be advisable to conduct a private exam prior and take the report from the private physician to the C&P exam.
3. DVA makes a Ratings Decision.
4. If the Veteran disagrees, a Notice of Disagreement must be filed within 1 year of the Ratings Decision. There is no specific form for the Notice of Disagreement, but VA form 21-4138 can be utilized (Statement in Support of Claim), bolding “Notice of Disagreement”.
5. DVA develops a Statement of the Case (SOC).
6. If the Veteran disagrees, he/she files for a Substantive Appeal using VA Form 9 within 60 days from the date of the SOC or the remainder of 1 year from the date of the Ratings Decision.
7. Board of Veterans Affairs (BVA) conducts a Hearing on the Appeal. The veteran has several options for a BVA hearing:
a. Veterans Affairs Regional Office (VARO) Decision Review Officer Hearing
b. BVA Records Review
c. BVA Traveling Panel/ Teleconference
d. BVA Washington, D.C. hearing
8. DVA reviews the BVA decision
9. Veteran can file motions or an appeal:
a. Motion to Reconsider due to Obvious Error, New and Material Evidence, or False or Fraudulent Evidence
b. Motion to Revise for Clear and Unmistakable Evidence (CUE)
c. Appeal to Court of Appeals for Veterans Claims (CAVC). Notice of Appeal must be filed 120 days from date of BVA denial. The CAVC conducts judicial review only.
10. If Appealed, CAVC makes a decision.
11. Appeal filed to Court of Appeals for the Federal Circuit. Must be filed 60 days from the CAVC final decision.
12. Veteran can reopen a claim if new and material evidence is discovered.
Standard of Proof for Veterans Claims
The Standard of Proof is “As Likely than Not.”
Attorneys Fees
Attorneys Fees can be paid from a back award, but the attorney must have a fee agreement approved by the DVA, and can only be paid for services after the BVA has made its final decision.
Application for Compensation and/or Pension Benefits
A veteran uses VA form 21-526 to apply for compensation and/or pension benefits. VA Form 21-526 has parts A, B, C, and D. Different parts are filled out if the veteran is filing for Compensation Benefits or for Pension Benefits (see below).
Part A (General Information): Active Duty and Reserve Duty dates and places and mailing addresses of units are entered, as is a list of military benefits received and amounts. An original or certified copy of DD214 or other separation papers should be attached for all periods of service.
If the veteran receives military retired pay, the VA will reduce retired pay by the amount of compensation received. VA compensation however is not taxable, while retired pay is taxable.
Part B (Compensation): List disabilities claiming including treatment dates in service, and name and address of medical facilities treated after service. Also list information about environmental exposures or events that caused the disabilities claimed including dates they happened. Attach an original or copies of all service medical records that the veteran has, medical records showing the disability, and medical records indicating that the disability was caused by or happened during active service. The VA does not keep medical records. The veteran should go to NARA to get copies (which are normally provided free to veterans.)
Sign VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) to allow the VA to request records for medical care completed after discharge from service (including military health care facilities).
Part C (Dependency): List information about current spouse, spouse’s previous marriages, children who live with the veteran, and children not living with the veteran and amounts contributed in child support. Attach copies of marriage certificate and all divorce decrees, birth records for each child claimed as a dependent, and copies of court records for adoption for each adopted child.
The VA recognizes biological children, adopted children and stepchildren as dependents if unmarried and under the age of 18, or 18-23 and pursuing an approved course of education, or permanently unable to support themselves before reaching the age of 18. 38 U.S.C. 101(4).
Part D (Pension): List information about the veteran’s training and employment history for the past year, information about the veteran’s nursing home (if applicable), information about the veteran’s net worth and dependents’ net worth, information about recurring income and dependent’s recurring income, and information about income the veteran and dependents expect to receive in the next 12 months. Attach current medical evidence showing disabilities (unless aged 65 or older), statement signed by official of the nursing home (if applicable) including date admitted and level of care, and nursing home payment status (Medicaid coverage or private pay).
Net worth is the market value of all interest and rights the veteran has in any kind of property, but does not include the single family dwelling unit and a reasonable lot area, personal items used everyday such as a vehicle, clothing, and furniture.
Be sure to make a photocopy of the application prior to submitting to the VA, and mail to the closest VA office. A list of VA offices is provided on the internet (www1.va.gov/directory/guide/home.asp). Keep a copy of all attached records sent to the VA.
Compensation Benefits 38 U.S.C. 101(13), 38 U.S.C. 1110.
A veteran can apply for compensation benefits if ANY of the following are true:
1. The veteran was injured while in service.
2. The veteran was seriously ill while in the service and has continuing problems.
3. The veteran developed a mental or physical condition that may be related to his/her military service.
4. The veteran is permanently and totally disabled and believes that it is because of his/her military service.
5. But not if result of veteran’s willful misconduct.
The disability must be a result of military service. If the disability is 30% or more disabling, the VA can pay additional compensation to a spouse, children, and dependent parents. The VA will pay a higher compensation for a spouse when the spouse is a patient in a nursing home or is disable and requires regular aid and attendance of another person.
The disability must be a current disability, diagnosed by a medical professional (not “rule out”, “probable diagnosis”, “my assessment”, or “my impression”- must be a diagnosis), from injury or illness, and presently exist. 38 CFR § 3.03. Certain diseases cannot be service-connected (personality disorders, mental deficiencies, congenital defects, developmental defects). 38 U.S.C. § 1111. The disability must also be the result of an in-service injury or illness. 38 U.S.C. § 1153. There is a presumption of soundness (that the veteran was of sound body when he/she entered into the military) and a presumption of aggravation (that the aggravation occurred while in the military). 38 U.S.C. § 5107. There must also be a nexus (link) between the current disability and the in-service illness or injury. This nexus requires an expert medical opinion with the standard of proof being a preponderance of the medical evidence. The veteran receives the benefit of the doubt with “At least as likely as not” being the standard.
There are five methods of establishing Service-connection:
1. Direct: proof via service medical records or service daily reports.
2. Presumptions: Presumptive lists of illnesses and injuries that occur while in the military. If the veteran comes up with one of these illnesses within a designated period after leaving the military then it is presumed that the military caused the illness. There are also presumptive lists for POWs and a presumption for secondary basis service connection (favors other leg now, etc.)
3. Continuity of Symptomatology: Witnesses testify that the veteran had these problems since being in the military. Affidavits can be obtained and matched with medical records.
4. Aggravation: Military has aggravated a previous condition.
5. § 1151 Claims. 38 U.S.C. § 1151 details certain claims such as a veteran being injured during treatment at a VA Medical Center or VA Vocational Rehabilitation Center. Can also utilize the Federal Tort Claims Act.
The veteran fills out VA Form 21-526 parts A, B, and C for compensation benefits. The DVA produces tables of rates of pay for compensation benefits. These Benefits Rate Tables are based on the percentage of disability, and whether the veteran has dependents.
Compensation benefits are tax free.
Pension Benefits 38 U.S.C. 101(15).
A veteran can apply for pension benefits if ALL of the following are true:
1. The Veteran must have been discharged under “Other than Dishonorable Conditions.
2. The veteran is permanently and totally disabled (disabilities do not have to be service-related) or over 65. 38 U.S.C. § 1521. Normally the veteran must have at least a disability rating of 60% or more or two or more disabilities with one rated 40% or higher and a total rating of at least 70%. The disability must not be due to misconduct. Ratings are discussed in 38 CFR 4.
3. The veteran served on active duty during a wartime period as discussed above in eligibility for benefits section. 38 U.S.C. § 5303A
4. The veteran’s income and net worth are limited (income veteran and family receives and based on the number of dependents). 38 U.S.C. § 1152.
The VA pays a higher rate of disability pension to a veteran who is a patient in a nursing home, otherwise needs regular aid and attendance, or who is permanently confined to his/her home because of a disability. Pension rate tables are provided by the DVA.
If the veteran is eligible for Social Security disability and VA pension benefits, apply to both. One resulting pension can serve as proof for the other. The pension is need based with a maximum annual pension rate (MAPR) adjusted annually to reflect the cost of living. If the veteran’s countable income is above the MAPR, the pension will not be granted or will cease. There is a dollar for dollar deduction from the pension for household income. Income is annualized in the determination, and any household income that is not specifically excluded by the regulation is included in the calculations. Excluded income includes: SSI (but SSA does count as income), welfare (FIP), proceeds of fire insurance payments, payments received under Victims of Crime Act, interest on retirement accounts (until withdrawn), and Agent Orange Settlements. The veteran must provide Annual Eligibility Verification Reports (EVRs). If the veteran is receiving Medicaid to cover nursing home care, the pension benefits are reduced to $90 per month.
The veteran must also have low assets, but there is no definite definition of assets like Social Security (which is tied to state exemptions). The DVA just defines low assets as just and equitable. A house is not considered as an asset.
The veteran fills out VA Form 21-526 parts A, C, and D for pension benefits. (For both compensation and pension benefits parts A, B, C, and D are filled out.) DVA produces tables for maximum pension benefits.
Dependency and Indemnity Compensation (DIC)
DIC is for spouses, surviving spouse, children, surviving children, and dependent parents.
Spouses must have had a valid marriage under the marrying state law and both parties must have been free to marry at the time of marriage.
Surviving spouses must have been a valid spouse at the time of death, and may have to show at least 1 year of marriage at the time of the veteran’s death, continuous cohabitation, and no remarriage.
Children can be biological, adopted, or stepchild (if currently residing with veteran), and must be under age of 18 years of age or up to 23 if in school, or any age if permanently helpless prior to the age of 18.
Surviving child can be biological, adopted, or stepchild (if residing in veteran’s household at the time of the veteran’s death) and under the age of 18 or 23 if in school, or any age if the child became permanently helpless prior to the age of 18.
Dependent Parent needs to prove parenthood and must also prove financial dependency upon the veteran.
DIC is payable where the veteran either established the right to service connected compensation before death or should have been entitled to compensation. Types include:
1. Veteran died from a service connected disability.
2. Veteran was totally disabled for 10 years prior to death.
3. Veteran was totally disabled for 5 years prior to death and there is “clear and unmistakable error (CUE) on the part of DVA that shows the veteran should have been found disabled 10 full years prior to death.
4. The veteran was totally disabled for 1 year prior to death and was a POW.
5. The veteran died due to neglect by a VA Medical Center.
DIC payment tables are provided by the DVA.
Apportionment
If spouses are separated, while the VA benefit can not be taken directly for child support, apportionment can occur. If the DVA can pay without harm to the veteran, then DVA adds to the payment and apportions the payment. Apportionment ends once the spouses are divorced.
Survivor Benefits
Accrued benefits are payable under 38 U.S.C. § 5121 or 5121A. There must have been a claim for benefits pending at the time the veteran died, and a decision is based on the evidence of record at the time.
Death Compensation
Death compensation is for veterans who received or were entitled to a pension at the time of his/her death. The recipient must have low income and low assets. Death compensation does not pay as well as DIC or the veterans pension.
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