With the passing of the Honoring Our PACT Act, veterans benefits are again at the forefront in the public benefits world. This legislation, long overdue, is designed to address the devastating toll that exposure to toxic burn pits and other toxic materials has taken on the lives of our service members and their families. It adds more than 20 presumptive conditions for Agent Orange, burn pits, and other toxic exposures; adds additional presumptive-exposure locations for Agent Orange and radiation exposure; and includes the Camp Lejeune Justice Act (CLJA), which provides an avenue for Marines, family members, government employees, and any visitors who can prove they spent at least 30 days aboard Camp Lejeune between 1953 and 1987 to be compensated for exposure to and/or ingestion of contaminated water via the Navy’s Tort Claims Unit (TCU).
Legislation such as this is critical to correcting past wrongs and honoring the sacrifices that our service members, and often their family members, made in service to our nation. In my practice, I too often run into veterans who are resistant to accessing these much-needed benefits. They are used to living a life of sacrifice and tell me they can get by without them, or that someone else inevitably needs them more than they do. I find myself reminding them the contract they signed so long ago for the privilege to serve our nation was, in fact, a two-way street. For all the sacrifices, extended periods away from home, missed anniversaries, missed birthdays and weddings, missed first steps and first words — and for the inherent risks, dangerous jobs, and putting themselves in harm’s way — the United States pledged to them to uphold President Lincoln’s promise so many years ago “…to care for him who shall have borne the battle, and for his widow, and his orphan… .” These benefits were earned, not given — often with the sacrifice of the veteran’s physical and mental health and well-being.
Unfortunately, the processes and procedures the U.S. Department of Veterans Affairs (VA) requires to access these benefits can be overwhelming. The multitude of forms, rules, and other miscellaneous minutiae serves as a barrier between the veteran community and the benefits designed to help them. And even prior to this most recent legislation, it is clear that the VA is under-resourced and over-mandated, making it more and more difficult for them to deliver on the timely processing of claims for the veteran community. And so it falls to us, our obligation as practitioners, to maintain a base level of knowledge in this area, to be able to effectively counsel our clients through the process. The passing of the recent Honoring Our PACT Act is an opportune time to review the VA benefits basics. In the elder law realm, there are three fundamental benefits programs which every practitioner should have a basic understanding.
The primary VA benefit is the non-service-connected (NSC) pension. Often referred to as “aid and attendance,” which is a misnomer, the NSC pension is a targeted benefit to provide monetary assistance for those veterans of limited financial means whose unreimbursed medical expenses (UMEs) are outpacing their income. There are both service requirements and financial requirements that must be met for eligibility.
To meet service requirements, a veteran must have served at least 90 days on active duty (24 months for service members who began service after September 8, 1980) with at least one day occurring during a designated wartime period. Those wartime periods are World War II (December 7, 1941, to December 31, 1946); Korean conflict (June 27, 1950, to January 31, 1955); Vietnam War era (November 1, 1955, to May 7, 1975, for veterans who served in the Republic of Vietnam during that period; August 5, 1964, to May 7, 1975, for veterans who served outside the Republic of Vietnam); and Gulf War (August 2, 1990, through a future date to be set by law or presidential proclamation). The characterization of service of the veteran claimant must be under conditions not deemed “dishonorable.” For enlisted service members, practitioners need to be aware that there are five types of discharges: three administrative discharges (honorable, general under honorable conditions, and other than honorable) and two punitive (awarded at courts-martial) discharges (bad conduct discharge and dishonorable discharge). If the claimant has any discharge other than dishonorable, there is at least hope for a successful claim.
As for the financial requirements, there is a resource test and an income test, both of which must be met for a successful claim. The current resource cap is $150,538, excluding a home on a lot size less than two acres. (Note: This two-acre rule was implemented in 2018 and negatively affects rural claimants who tend to live on larger lot sizes or may have inherited family farms, which due to their size often put them over the resource limit, while those living in cities can maintain homes valued at close to a million dollars with no negative consequences. But that is a fight for another day.) Then, to keep things simple, the veteran’s income (and spouse; married couples are treated as a single unit) is measured using the IVAP (Income for VA Purposes) test. It is the gross income of the veteran (and spouse) minus their unreimbursed medical expenses. If this number is low enough based on a preset table of rates depending on the marital status of the claimant and eligibility for the additional aid and attendance benefit (as noted earlier, “aid and attendance” is an additional layer upon a veteran’s base benefits and not a stand-alone benefit itself), the veteran is eligible to receive monetary compensation. When the IVAP gets to zero or becomes negative, the veteran maxes out the monetary benefit.
If the veteran has passed away, the surviving spouse may claim a survivor’s pension, sometimes referred to as the widow’s pension. The military requirements of the veteran remain and the financial tests are done on the survivor’s resources and income, with a significantly smaller available pension benefit.
The next core benefit to be aware of is service-connected compensation. Service-connected compensation benefits are exclusively for veterans and consist of three elements. First, an eligible veteran must currently be suffering from a medical condition. Second, the veteran must have suffered an injury or had a toxic exposure during their time in service. And third, there must be a nexus between the injury or toxic exposure in service and their current medical condition.
The nexus between the current medical condition and the veteran’s time in service is often the most difficult element to prove. In certain cases, the VA essentially waives demonstration of a nexus. The VA accomplishes this through what are known as presumptions. The most well-known presumptions are those for Agent Orange exposure during Vietnam service. The VA rules allow for two different presumptions regarding Agent Orange exposure: “presumptive exposure” and “presumptive conditions.” For example, veterans are considered to have presumptive exposure if they served in Vietnam, served in the 12 nautical miles of territorial waters surrounding Vietnam (the blue water zone), or (due to recent changes via the PACT Act, subject to specific service dates) served on U.S. or Royal Thai military bases in Thailand, served in Laos, served in Cambodia, served in Guam, or served in the Johnston Atoll. Presumptive exposure means the veteran does not have to prove they were exposed — it is simply accepted as fact. Not having presumptive exposure does not prohibit a veteran from providing other evidence of exposure to or handling of Agent Orange to prove the nexus. For presumptive conditions, the VA maintains a list of diseases that are caused by exposure to Agent Orange. If a veteran has one of the diseases on the presumptive conditions list (which can be found at https://www.va.gov/disability/eligibility/hazardous-materials-exposure/agent-orange/) and meets the criteria for presumptive exposure to Agent Orange, then the nexus between the exposure to Agent Orange and the disease is simply accepted by the VA. If a veteran has been presumptively exposed to Agent Orange but has a disease not on the presumptive conditions list, they can still bring a service-connected claim — but the veteran will have the burden, by a preponderance of the evidence, to prove that their current condition was caused by the Agent Orange exposure.
If a veteran has passed away from a service-connected condition, there are still benefits for a surviving spouse or dependents known as Dependency and Indemnity Compensation (DIC). If a spouse was married to a veteran for at least one year, or had a child with that service member, and the service member died while on active duty, died from a service-connected illness or injury, or had a service-connected disability rating of 100% for 10 years prior to death, then a surviving spouse would be eligible to file a DIC claim. Unlike the NSC pension and survivor’s pension noted above, service-connected and DIC claims do not have any financial means test. Because the injury or disease had its roots in the veteran’s service, it is the VA’s responsibility to compensate the veteran or the veteran’s surviving spouse, regardless of financial means. This can greatly simplify both the claims process and the estate planning process for the attorney representing the veteran or their surviving spouse.
The last major benefit to be aware of is health care through the Veterans Health Administration. The initial criteria are very straightforward: active military service without dishonorable discharge. If the veteran’s service began after September 7, 1980, the veteran must have served for at least 24 continuous months, or the full period for which they were called to duty, unless the veteran was discharged for a disability or hardship.
Of the major VA benefits, VA health care has the simplest application. The form to submit to the VA is known as a VA Form 10-10EZ. It is a three-page document that requires the veteran to provide their biographical data, service-related data, current insurance information, number of dependents, and basic income information. From there, the VA will determine if the veteran is eligible and, if eligible, place them into one of eight priority groups. The priority group system is designed to ensure the VA gets treatment to those veterans with the most immediate and urgent need, and will likely affect how quickly they get enrolled and how much the veteran will be required to pay. VA health care comes with prescription drug coverage which often makes an immense financial impact for a senior citizen veteran living on a fixed income.
Understanding the three core veterans benefits listed above will enable any elder law attorney to assist the vast majority of their veteran clients. Being well-versed in these programs will set you apart, as many attorneys tend to avoid engaging with the VA due to its byzantine rules and procedures, and its requirements for accreditation. Becoming an accredited VA attorney is actually straightforward, requiring a three-hour CLE course on veterans benefits and certifying to the Office of General Counsel that the attorney is in good standing. This will need to be done every two years. Attorneys can ask their local VA Regional Office to provide them with a Personal Identification Verification (PIV) card and CITRIX portal access directly into the Veterans Benefits Management System (VBMS) so the attorneys can track claims submitted on behalf of clients in real time using the VA’s own system. This allows the attorney to provide much more accurate updates on the state of the claim, as well as be more responsive to VA development letters that are requesting additional information. Finally, most counties around the country have Veterans Service Officers that assist local citizens with claims. These VSOs are often highly trained and an excellent resource when an unusual benefit request or service history issue arises.
It is difficult to think of a more deserving community of individuals to whom we as attorneys can provide our time and expertise. Becoming proficient in veterans benefits claims serves those who have served every one of us, in defense of our nation.