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.

The benefit of doubt rule favors Veterans and their claims for benefits.  If you are unfamiliar, here is the rule:

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.“

This means when the evidence is 50/50, the VA is supposed to favor the Veteran.  However, not knowing this rule or failing to address is an issue for many Vets.

Doubt Impacted by Evidence

A second issue presented by 38 § US Code 5107 is the issue of responsibility.   Yes, the benefit of doubt rule can positively impact veterans and their families if they [the veteran] present supporting evidence.

This means Veterans have the duty to find and submit evidence.  For those familiar with Veteran Claims and benefits, the VA’s duty to assist a claimant under statute 38 § US 5103A is, unfortunately, suppressed.

Veterans With Unequal Doubts

Just so we are clear, the benefit of doubt rule is not the same as doubting the VA.  If anything, allow for your doubt in the VA process inspire even more attention to evidence for your VA claim.

Yes, Veterans and their families can do a lot of good for their claim by turning it into a game.  The game is simple.  Can you create and seek?  Here are a few ways Vets can add value to their claims:

• Starting at square one, always acquire a certified copy of your DD 214,
• Make formal written requests for subpoenas of a person or people,
• Ask the VA to seek a subpoena duces tecum,
• Seek layperson testimonials from friends and family
• Give exams of functional impairments and include photos to tell your story,
• Gather blog posts, social media statements, and newspaper articles of past military events, or
• Starting a record when there isn’t a record.

If you try hard enough, the list of options is endless.

Benefit of Doubt

In my experience, presenting supporting evidence starts with small factual nuggets.  And, unlike bitcoin, showing anything tangible is the first step.  Whether this means putting pen to paper or some other means, Veterans have the power to take back control of their claim. 

BVA responses are tricky.  When considering a potential response to a denial, I like the idea of looking for errors.

Here are a handful of common errors Veterans can use to reverse their denied claim:

• BVA failed at identifying the correct issue,
• The Veteran was never advised or encouraged to submit additional evidence,
• Improper notice as required by Rule 5103(a),
• A clearly erroneous finding of fact,
• An error of law,
• VA didn’t assist the Veteran,
• BVA relied on their own medical opinion,
• An ignored secondary injury,
• Non-compliant remand order,
• BVA failed to reopen the case when they had new evidence.
• Symptoms experienced by Veteran were incorrectly balanced,
• Disability rating was not applied to separate symptoms, and
• Diagnosis errors.

The Veterans Bonus Program in Minnesota is not perfect.  Being a Veteran or a friend of a Veteran doesn’t mean you shouldn’t raise a stink.

Luckily, there is an appeal process for incomplete or unfair allocations.

Veterans Bonus Program Eligibility

First, the same person who is eligible for benefits can appeal a determination.  This includes:

• The Veteran,
• The Veteran’s guardian or conservator
• A personal representative
• Beneficiary
• A Beneficiary’s guardian, and or
• Anybody who filled out the original application for benefits.   

Monetary Benefits of the Veterans Bonus Program

Based on Minnesota law, the monetary benefit for this MN Vet program $300, $600 and $2,000.  Each level has different requirements, which you can read about here.

Veterans Bonus Program Goes Bad

In my experience, this program fails when a veteran or their representative misunderstands the application.  Other times, a Veteran or their representative forgets to seek this benefit.

Either way, every Minnesota veteran or military family should be seeking information on whether they are eligible for this benefit.  Assuming eligibility isn’t an issue, apply.  If the application gets denied, appeal.

Veterans Bonus Program Appeals

When required, the appeal process is very straightforward.  The best guide for perfecting an appeal is outlined under Minnesota statute 197.79 and says the following:

Upon notification that the department’s determination of the bonus amount is less than the bonus amount requested by the applicant in the application, the applicant may appeal the department’s determination and request a review by the commissioner. The appeal and request for review must be made in writing within 60 days of the department’s mailing of its determination. Following receipt by the department of an applicant’s appeal and request for review by the commissioner, no payment shall be made by the department to the applicant until the review has been completed. For such review, the applicant may submit additional information to supplement the information provided in the application, and may request that the review be conducted either: (1) through written correspondence; or (2) in person with the commissioner. The commissioner shall act upon an appeal and request for review within seven working days of its receipt by the department. Following review by the commissioner of the application and any additional information submitted or presented by the applicant, the commissioner’s determination is final. Any expenses incurred by the applicant as the result of the applicant’s appeal and request for review are the obligation of the applicant.

When a Veteran is unable to act on their own behalf, using a VA Power of Attorney form can be effective.  However, every situation is different and seeking professional feedback from a Veteran’s Attorney is highly encouraged.

Military veterans survivor guilt is real.  If you are a vet or a concerned family member, you are not alone.   As a veteran myself, I believe I have encouraging feedback for those seeking an increased disability rating.  Thus, please stick with me.

First, survivors guilt comes in all kinds of shapes and sizes.  As of the date of this article, the Veteran’s Court of Appeals has published 21 cases that highlight PTSD and survivor’s guilt.

Second, the gist of these cases can be narrowed down to one phrase:  functional impairment,  Unfortunately, military veterans are losing more appeals than they are winning because most vets fail to meet this critical threshold.

Luckily, you can start moving in the right direction starting now.

Veterans Survivor Guilt and Functional Impairment

What is functional impairment?  I prefer a simple answer.  For the Veterans requiring a stronger answer, I referenced the federal law below.

Functional impairment for veterans survivor guilt is the combination of three areas impacting a vet’s personal, social and professional life.   When a veteran calls me for the first time, I encourage them to make three lists:

• Physical problems,
• Emotional problems, and
• Mental health problems.

Because the idea is to keep this simple, a veteran’s functional impairment is a list of problems.  What makes a list more credible is affirming this list through professionals and family members. This means seeking a formal opinion from your doctors, accountant, dentist, friends, spouse, parents, ex-spouse, ex-partner, siblings, neighbors, etc.

In my experience, the best opinions utilize the federal rule.

Veterans Need Support

Recovering or managing survivor’s guilt is extremely hard.  So you know, when a Veteran starts with their list, this can inspire emotion, anger, conflict, and memories.  For this reason, making a list alongside a mental health professional makes sense.

Some of the best lists make reference to ailments.  When a veteran doesn’t know (which is often the case), ask a close personal friend or family member.  Very likely, they can confirm the lack of sleep, nightmares, poor eating and drinking habits, spaced out look, or whatever the ailment might be.  Again, asking for help from those around a veteran can improve their opportunity for an increased VA disability rating.

For example, does the veteran in your life check the back door over and over again?  Although not a physical problem, having compulsive tendencies is an impairment.  Having nightmares or experiencing a panic attack every time a Veteran hears sirens is an example of an impairment.

Again, sometimes we as veterans misjudge our own impairments because we are to busy trying to maintain find our own path.  Instead, consider making a simple phone call.  Doing so can make a difference.

Veterans Survivor Guilt: Rule on Functional Impairments

Thank you for sticking with me.  Now, let us introduce the source of truth:  rule 38 CFR 4.10, which is our guidance for a diagnosis and proving PTSD or Veterans survivor guilt.

The rule reads like this:

the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Whether the upper or lower extremities, the back or abdominal wall, the eyes or ears, or the cardiovascular, digestive, or other system, or psyche are affected, evaluations are based upon lack of usefulness, of these parts or systems, especially in self-support.

Again, military veterans seeking disability benefits should be very descriptive with their impairments, even on a body part by body part basis.  Because this process is hard, seeking help from professionals is a strong response to the VA.

Veterans Survivor Guilt: My Diagnosis

I am not a doctor.  Likely, you are not a doctor either.  Having a diagnosis is not good enough.  A winning case includes impairments, ailments, and anecdotes on physical, emotional and mental health issues.

In my experience, doctor shopping or using a doctor that has helped a veteran in the past is a great starting point.   On the other hand, not every doctor or psychologist understands a military battlefield or even the military life in general.  Assign elements required with a VA appeal, and you have yourself a mess.

It does not matter if you think your claim is small or large, it is worth pursuing.  If you need more ideas or support, please ask me for my thoughts.

I wish you the very best.

Yes, VA claims have the power to live on well past the grave.  It blows my mind when a Veteran’s family thinks the fight is over at death.  In my experience, this is when the process takes a turn for urgency or time is of the essence.

Veterans Appeals Tip # 001 –  Even When a Veteran dies, a family member can substitute themselves into an appeal and seek benefits owed”

In other words, Federal Law 38 US Code 5121A can be used to continue an appeal.  If your Veteran took the time to file a claim, obviously they did so for a reason.  Don’t let the VA off the hook.  After all, the military veteran family member in your life made a significant sacrifice in your honor.

I wish you the very best.