Category: Veterans Benefits

The VA look back rule changed in October 2018. Starting October 18, 2018, the VA imposed a new rule that negatively impacts Veterans and their families who are seeking benefits through a nursing home. In general, the new rule requires the disclosure of gifts. When a gift is made inside the new look back period, the VA calculates penalties and ineligibility periods. As a result, the look back rule for VA benefits has positive and negative implications.

Veterans and military families who transferred assets within three years of applying for benefits may unintentionally subject themselves to a 5 year waiting period. Depending on the gift, it might be preferable to wait three years when applying for certain benefits versus getting hit by a VA penalty. Even worse, the penalty period can start over as of the date of the last gift.

In other words, taking a lackadaisical strategy to veteran benefits can have long term consequences. Therefore, before spending down assets or making asset transfers, consider weighing long term implications with other processes that might offer more opportunity to protect assets.

Brain donation is turning into a big topic for military veterans with various battlefield injuries like PTSD and CTE. Some military veterans are doing it as a way to continue their service of others, while other vets want clarity for their family members.

Regardless, there is a right way and a wrong way to donate one’s brain or any body part for that matter. Unfortunately, military veterans are acquiring bad information.

If military veterans take the advice in published articles outlined in the American Legion, military veterans in Minnesota might not get what they expected. And, online web designations are making matters worse.

Luckily, there is an answer.

Pledging A Brain Donation

As it stands right now, making a pledge to donate a brain through an online website like CLF or VA-BU-CLF isn’t good enough. There are four significant reasons why:

• Doing so may contradict other official statements made on a Minnesota driver’s license;
• Pledging a brain donation may contradict previously created estate planning documents;
• The donation center selected today might not be around in 5, 10, 20, 30, 40, or 50 years;
• And, if your Family doesn’t know, nobody knows.

Veterans Wishing to Donate Organs

The process for military veterans wishing to donate their organs is a similar process as those who do not. Use a formal document that complies with Minnesota Chapter 525A and clearly express one’s wishes.

Expressed wishes sometimes show up inside a health care directive.

Other times, the details of an organ donation are outlined in a specific organ designation form.

Ideal Practices for Organ Donation

Ideal practices may include:

• Making a decision,
• Having a discussion with key family members (spouse, adult children, etc.),
• Having a formal document clearly state what is intended by the organ donor,
• Following the rules under Minnesota Chapter 525A, and
• Having a written statement that allows the Health Care Agent or Organ Care Agent an opportunity to make choices or changes on behalf of the military veteran if required.

Future Organ Donations

For military veterans wishing to make a brain donation, I like to see contingency plans that favors other family members. Unfortunately, many military families cannot predict the future needs of a relative or grandchild.

Donating a brain today sounds great. But, what if a future grandchild needs a kidney, liver, or cornea? Certainly, every organ donation should allow for other needs, just in case.

For these reasons and the rules governed under Minnesota Chapter 525A, a brain donation is not as simple as making an online web designation. Instead, include this type of designation to a personalized estate plan.

M21 is a significant reference for military veterans and their claims for benefits. In a nutshell, M21 is a document that describes the VA process for rendering benefits for all sorts of issues, including:

• Claim Processing
• Disability Claims
• Ratings
• Pensions
• Aid and Attendance
• Burial Benefits

For the Vets who know what this document is all about, Veterans confuse sections and parts. If this already sounds confusing, do not be afraid.

Yes, the manual has many parts and uses a strange numbering system. Do not allow this to be a roadblock.

Always assume you have an outdated M21-1 Manual. Luckily, Veterans, military families, and VA Benefit lawyers can find updates to the M21 Manual here, which shouldn’t be confused with the VA’s old M21 link.

As you know, dress right dress is a marching command.  Behind attention and at ease, dress right dress is one of the first marching commands we learned in the military.  Do you remember it’s meaning?

The dress-right-dress command is simple:  are you lined up with what is next to you?  As easy as it might be, wow…I saw a lot of people get smoked for failing to look right.

Anyways, let’s use this simple command (minus the folks who are getting PT-ed as we speak and apply it to our life as it stands today.

Dress Right Dress Your Estate Plan

Before you ship out to Heaven, can you please organize your docs in a specific spot?  Otherwise, your family is stuck waiting for a statement in the mail.  Unfortunately, if you opted out of your monthly statement, the wait might be even more problematic.

You already know this, but I will share it anyways.  The idea of putting things in order is critical for our children and spouse.  Usually, a spouse can pick up the pieces if this issue gets breached.  Our children, not so much.

Dress Right Dress Your Home

It blows my mind how many people are willing to send money to a mortgage company and they fail at filling out a transfer on death deed.  Obviously, these types of forms require a specialized knowledge.  But, they are usually very inexpensive and a lifesaver when crisis mode turns into a funeral.

Dress Right Dress Your Beneficiary Forms

If you took one of my community education classes, you already know this.  For those who haven’t, here it is one more time: beneficiary forms usually trump a will.  Even those amongst us who are avoiding a will can agree that acquiring copies of beneficiary forms is easy peasy.

Finally, if need help with your dress right dress, I am here.

Social security for Veterans who are not retired is a very common issue.  In fact, I wish more veterans who have a disability would file and seek social security benefits.

The intent of this post is to point out a special rule military veterans with a 100% permanent and total (P and T) disability rating.  The rule is simple:  vets with a hundred percent disability rating can seek an expedited claim process for social security benefits.

For the military veterans who do not have a 100%  disability rating, don’t give up.  Seeking SSDI benefits is a worthwhile process and appealable too.

Veterans With a 100% P and T Disability Rating

Whether a Vet files a claim online, by phone, or using a paper application, every applicant seeking benefits should be:

• Identifying themselves as a Veteran
• Adding a special remark to their paper application, and
• Attaching and submitting their VA award letter.

Social Security for Veterans:  How Long Does it Take?

Every case is different and there is not a black and white answer.  However, military veterans who have an organized claim with supporting documents from their medical doctor seem to have the most success.

Sometimes, the Social Security Administration will send a military veteran to a government doctor for an examination.  If possible, having a diagnosis and prognosis outlined by a medical doctor or VA doctor beforehand offers the veteran a better opportunity to acquire an approved claim.

Social Security for Veterans:  Another Trick to the Process

In my experience, when SS looks at a Veteran’s claim, they are looking for two facts:

• The military veteran is unable to work, and
• The vet has a severe impairment.

When Social Security reviews the issue about a severe impairment, consider one of these two tests:

• The impairment is going to last for more than a year, or
• the impairment that will result in death.

Veterans Filing Social Security Claims

Again, there are three ways a military veteran can file a disability claim for Social Security:

• Apply online HERE,
• Calling the SSA at 800-772-1213, or
• Visiting the nearest social security office.

Social Security for Military Veterans

Veterans who run into road blocks on their VA claim or social security claim can file an appeal.  If you need help with this process, please contact me directly.

I wish you the very best.

The difference between VA Form 22 and VA Form 21-22a is as easy as determining whether the Veteran wants an attorney or a Service Officer to represent them during an appeal.

VA Form 22 is used when a Veteran wants a Service Organization, like the VFW, to represent them.  VA Form 22a tells the VA an attorney is representing the Claimant.

Why is VA Form 22 Important?

One of the reasons this VA form is so critical is the fact it helps clarify when and where notices are sent.  In other words, when the VA contacts a military veteran by mail, where should the mailing go?

Second, this form helps clarify who can speak or file documents on behalf of the Veteran.  If a Veteran’s representative fails to submit one of the above mentioned forms, a filing might go unrecognized.

As you know, VA benefits are a serious matter.  In my personal and humble opinion, I like the idea of retaining an attorney versus a service organization because VA benefits are supported and protected by federal laws.  As an attorney, I work with laws, rules and the legal process on a daily basis.  Even though service organizations do great work, consitutional provisions and due process isn’t necessarily their strong suit.

When Can Veterans Use VA Form 22?

A Veteran can retain a lawyer or service group at any point before or during their appeal process.  In some cases, veterans hire attorneys after their appeal has expired.  But, this is a topic for a different day.

Regardless, here are links to these forms, which I encourage every Veteran or family member to review:

• Veterans wishing to hire a service organization can use VA Form 22
• Veterans wishing to hire an attorney can use VA Form 22-a.

Replacing VA Form 22 and VA Form 22a

Yes, these forms can be used to change and revoke a representative.  Even more important, these VA forms can be changed, edited and updated on a regular basis.

For the Veterans claiming they are not getting mail from the VA, likely updating one of these forms will improve the flow of information.

If you have questions or need help, please contact me directly.

Transgender issues in the military received a swift kick in the teeth this week.  On the other hand, because the laws are poorly developed and unclear, transgender military veterans have an advantage.

Personally, I believe Veterans willing to put forth the work with their VA claim, are going to see a lot of positive outcomes.

Most military vets know this, but it is worth repeating.  Seeking VA benefits is hard.  Adding a  gender identity issue expeditiously increases the complexity of the claim.  But, it is certainly worth it.

But, most of this success will not come to fruition until the military veteran is discharged and a claim is filed with the VA.  

Transgender VA Claims

As of the date for this post, there are literally, tens of thousands (+10,000) VA cases to search and read.  Would you believe there are only two (2) cases that speak directly to gender identity and transgender issues?

For those curious, one veteran was somewhat successful (they confirmed a 30% disability rating for PTSD), while the other veteran spent years making the same error.  The value in bringing this to your attention, is to learn from their successes and mistakes.

Yes, I commend both military veterans for seeking and appealing their VA benefits.  I believe both transgender veterans failed at being more successful with their claims because they focused on the wrong issues.  Here is what I mean.

Why Veteran Gender Identify Claims Were Denied

Without knowing the background for either transgender veteran, I believe the appeals were rejected because they, the veterans, focused on events prior to their military service versus issues during their service.  Outlining events related to being a transgender veteran are important.  Attaching a documented concern while serving is more important.

Successful Transgender VA Appeals

It is reported that 15,500 people serving in the military right now, claim they have a unique and special gender-related issue.  In my role as a veteran advocate, I cannot stress this enough: gender isn’t the primary issue.  Instead, I believe successful claims look something like:

• Veterans outlining a physical ailment or injury, or
• Transgender vets finding a primary mental health issue that started or was aggravated while serving.

Additionally, military veterans are encouraged to find long-term support outside their VA claim.

Physical and Mental Health Issues

Of course, gender definitely highlights physical and mental impairments.  Every veteran has a gender.  Whether the veteran sees value in assigning a term like transgender or gender dysphoria isn’t the starting point for seeking a claim for benefits.

Instead, start with a physical or mental health issue.

Long Term Support for Transgender Claims

Here is what I mean by long-term support:  finding a veteran advocate that can handle a fairly lengthy VA appeal process (both BVA and Court of Appeals).

Again, whether there is a gender issue or not, a VA claim can take years and years, and worth the fight.  Please contact me directly if you need help with your claim.

Aid and Attendance benefits are fantastically easy to request.  The idea behind today’s article is to share how and what to think about when military families are seeking aid and attendance.

Thus, I hope you find value in this short outline.

Aid and Attendance Benefits:  First Issue

The first issue is determining how to seek this all important benefit.  When I advise a Veteran and their family on this issue, I always ask where the Veteran is living.  Here is why this question is important.

• If the Veteran (or their spouse / dependent) is living in a nursing home, VA Form 21-0779 is used to request aid and attendance.
• If the Veteran lives anywhere else, then VA Form 21-2680 is the better form to utilize.

VA Forms for Aid and Attendance

Between you and me, I like the second form much better.  First, I believe it gives more control to the family seeking this benefit on behalf of their loved ones.  Second, it requires seeking help from the Veteran’s )or their spouse / dependent) personal medical doctor.

Compare this to VA Form 21-0779.  Although helpful in requesting benefits, I generally dislike this type of application because it asks the nursing home for their input.

The point I am trying to make is this: I trust my personal medical doctor more than my nursing home.  Also, experience tells me it is easier to acquire help from a medical professional versus a nursing home administrator.

Pension Management Centers for VA Benefits

Once a Veteran and their family has selected the form that applies to their situation, the next step is the process of submitting it to the right people or department.

Because the aid and attendance benefit aligns with pension benefits, the PMC or Pension Management Center is the place that reviews the VA forms referenced above.  As of the date of this article, there are 3 different Veteran PMC offices and they review issues based on the state where the Vet resides.

Here is a link to the three Pension Management Centers.

Nobody is Getting Rich from their Pension

The greater the disability, the greater the benefit.  Very few military families and Veterans contact me because they are looking to get rich from their aid and attendance benefits.  This is an earned benefit about acquiring help and assistance.

As a result, I think it is to the Claimant’s advantage to describe their personal situation as a detriment.  In other words, if the Veteran (or spouse / dependent) needs help cooking bathing, using the restroom, etc., then stop the doctor or nursing home administrator from sugar coating the need.  Again, the greater the disability, the greater the benefit.

Aid and Attendance Benefits vs. Housebound Benefits

Here is another important and surprising point:  by rule, Veterans and their families cannot receive household benefits in addition to their aid and attendance.  In other words, it is one or the other.  Obviously, the next issue turns on acquiring the benefit that offers the highest monetary return.

Thus, choosing which benefit is better calls for weighing a hodgepodge of disability ratings and need.

Do This Before Veterans Need Aid and Attendance

Before I close, I want Veterans and their families to realize that planning for every life event is hard.  As they say, hindsight is 20/20.  If there is time, I think Veterans, their spouses and dependents should consider acquiring a power of attorney and healthcare directive as soon as possible.

I make this suggestion because it gives our loved ones power to act on our behalf when we need it the most.  Even more significant, the generic form of these types of estate planning documents are free.  Otherwise, part of my law practice includes drafting more personalized health care directives and related estate planning documents.

If you and your family need help, please contact me directly.

Yes, many military families are asked to appeal a service connected death.  At first, receiving a letter from the VA like this can be detrimental.

On the other hand, setting aside our emotion is critical and sometimes families need help.

Does a Service Connected Death Matter?

Absolutely.  This issue isn’t even debatable.

The Department of Veterans Affairs is wrong, and you know it.  The number one reason cause of a service connected death should be appealed is because it impacts benefits for spouses, children and dependents.  In other words, compensation for dependents and family members.

Had the service member died as a civilian, they might have wrongful death rights or other tort system rights.  The military doesn’t use this same process.  As a result, appealing the VA for a service connected death is important in the short-run and long run.

Why is this happening to my Family?

The letter produced by the VA should not be viewed “gave over”.  In my experience, government agencies deny benefits for one reason:  so the Veterans Affairs Department doesn’t process an invalid claim.

it is easier for the VA to make families jump through hoops than trying to recoup an overpayment.  In Q1 of 2017, the VA claims they overpaid nearly $1.6 million in benefits.

Luckily, military families who act fast can appeal the VA’s denial.

How to Appeal a Service Connected Death Matter

Unfortunately, there isn’t one right answer on how to appeal a service connected death matter.  This is true because cases can be heard by:

• Board of Veteran Appeals,
• Decision Review Officers (DRO), and
• Court of Appeals.

Generally, military and VA benefits are appealed by filing a Notice of Disagreement (NOD).  I believe the evidence gathering process is just as important as a NOD because facts and laws should support a NOD.

For example, does a family have a copy of DD Form 1300 outlining the casualty repot?  And, what factual discrepancies can be identified or what facts should have been included in the report?

Here are other documents that might be helpful during this process:

• Marriage Certificates
• Birth Certificates
• DD 214
• Medical Records
• Base Newspapers
• Dental Records
• Letters and e-mail Exchanged by Family Members
• Independent Medical Examiner
• Mortician Notes
• Family Medical History
• Witnesses Reports

Again, I know these are difficult issues to address during the grieving process.  As a Veteran’s Attorney, I want to help and I wish the entire family the very best.

As parents, it is both exciting and a feeling of helplessness when our children join the military.

I am a huge proponent of our armed forces and believe there are certain estate planning documents younger people can use to help their parents talk with or step in front of Uncle Sam in case of injury or a medical issue.

Thus, I encourage all military families to engage their adult children and consider:

• A civilian side Health Care Directive,
• A military side Health Care Directive,
• A civilian side Durable Power of Attorney,
• A military side Power of Attorney,
• A Will, and
• Life Insurance.

Yes, there are other documents to consider too.  But, this is a great start.

Some Ft. Snelling Headstones are larger than others.  If you recently visited the Ft. Snelling National Cemetery, perhaps you have seen this too.

If not, I took a picture for illustration purposes.  In my practice, I help Veterans with their funeral arrangements within an estate plan and inevitably, I will get asked about headstones.

Thus, I addressed this issue on Twitter too:

Ft. Snelling Headstones – Some are Larger?

The answer is very simple:  larger headstone represent a gravesite with more than one veteran.  The picture I posted on Twitter represents a group of Minnesota veterans who died in an airplane crash as one.  

Likely, you and your family would have wanted this same type of memorial too.

Ft. Snelling Headstones:   Need to Know

Really though, I think this is an excellent way to introduce two VA forms that MN Veterans can use and reduce stress on their family.

If you are able, here are a few VA forms that apply to Ft. Snelling headstones and private funeral arraignment for veterans:

• Headstone for a a Military Cemetery: VA Form 40-1330
• Headstone for a Private Cemetery: VA Form 40-1330M

Therefore, as Veterans consider their funeral directive, I believe including one of these forms can offer significant value to a complete game plan.