Law Tips: VA Benefits

Although we are continually grateful, the Memorial Day time-of-year brings our veterans to the forefront. As always bears repeating, we sincerely appreciate the sacrifices of our veterans in the interest of protecting our freedom. This photo is a group of Indiana attorney-veterans as we recognized them on Veterans Day last year.

One way that the legal profession has of acknowledging veterans’ service is to meet their needs for legal advice.  In that spirit, Law Tips is privileged to provide this update on the practice potential of VA law from Roger Wm. Bennett, Bennett, Boehning & Clary, Lafayette, Indiana.

In his recent CLE presentation for the seminar, Advising Clients on VA Benefits,” Mr. Bennett presented this snapshot of the current status of Veterans Administration Benefits Law.

Some 7.6% of Hoosiers are veterans, there being 492,000 Hoosier veterans in 2008, including 112,000 Gulf War veterans and 166,000 Vietnam Era veterans. 1  Considering the number of Vietnam and Gulf War veterans, the number of veterans eligible for benefits, and particularly for pension benefits (in VA parlance 2), should not be collapsing even as the number of World War II and Korea veterans dwindles.

VA practice, however, is not limited by admission to practice in the veteran’s state of residence.  Nationally – and there are VA-oriented practices with a national scope – there are 22,448,000 veterans, 5,690,000 from the Gulf War era and 7,459,000 from the Vietnam Era.  For many of these veterans – and for spouses, surviving spouses and dependents – additional income may be available from the Veterans Administration to pay for home health care, assisted living at home or in a facility, and nursing home care.

The last six years or so have seen a great increase in lawyers’ awareness of Veterans Administration benefits to assist clients financially.  Why has VA practice only become prominent so recently? Some suggestions:

  • Most Veterans Administration decisions were not subject to judicial review until Congress passed the Veterans Judicial Review Act of 1988 (VJRA), 3 so VA practice was pure Administrative Law.
  • A post-DRA 4 scramble for alternatives to Medicaid.
  • A scramble for alternatives to Medicaid after the financial disaster of 2008 and subsequent freeze of Medicaid waiver programs.
  • When many of us began to practice, attorney fees were rarely allowed for VA work.

On this last point, the Veterans Judicial Review Act of 1988 (VJRA 5 and Veterans Benefits, Healthcare, and Information Technology Act of 2006 finally permits attorneys to charge reasonable fees (in limited circumstances still) Previously, Veterans Service Organizations (VSOs) such as the American Legion, DAV, the Military Order of The Purple Heart and VFW trained and hired lay advocates who traditionally served the majority of claimants without fee, 7 so there was no void of representation crying out for lawyer intervention and some hesitancy to undermine (or allow lawyers to undermine) groups that had done exemplary service for decades.

A notable exception to attorney fees being permitted is assisting in VA applications.  But even if they steer clear of assisting with VA applications, every elder law and estate planning attorney should become aware of key VA programs and their eligibility criteria, if not how VA and Medicaid coordinate benefits and how eligibility criteria for both may be met. 8  Further, there is a provision in the Medicaid rules that requires applicants to apply for all other available benefits, 9 which would include VA.  If FSSA begins enforcing that rule familiarity with VA benefits will virtually be required of attorneys assisting Medicaid applicants.

The VA itself is not spreading the word about all its benefits, 10 but assisted living facilities promote the pension program (often called “Aid and Attendance”) to prospective presidents who are concerned about their ability to afford such a facility, and some County Veterans Service Officers are spreading the word as well.

The opportunity to do good in VA work is significant, as non-attorney planners have moved into the field (often with the help of ALFs) with high-commission, hit-or-miss panaceas.  Lawyer involvement apparently is helping veterans.  In the years since the enactment of the VJRA, the success rate of claimants before the Board of Veterans Appeals (BVA) has been on a fairly steady upward trend.  Concurrently, there was a large  increase in the percentage of BVA appeals that were remanded to a Veterans Administration Regional Office for further evidentiary development and re-adjudication. 11

The opportunity to do well financial is less clear, but certainly exists where clients with significant assets wish to qualify nonetheless for VA needs-based assistance. 12

Thank you to Roger Bennett for his participation as a faculty member and for contributing once again within Law Tips.  Our appreciation to every veteran among you and to your family members. To view the upcoming Video Replays, the Online/On Demand Video or purchase the e-Publication of Advising Clients on VA Benefits,” – Click Here.

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Our Law Tips blog will be back next week offering educational topics mined from our faculty CLE materials. We appreciate you reading Law Tips.  Your comments are always welcome:  nancy@iclef.org or www.facebook.com/ICLEF.  Look for updates on Facebook or sign up for the RSS feed here on ICLEF’s website for the  “Law Tips Blog” as we continue to sift through the treasure trove of knowledge of our legal experts.

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1 2010 Indiana census population of 6,483,802.  http://factfinder2.census.gov/.  Veteran population based on http://www.census.gov/compendia/statab/2012/tables/12s0520.xls.

2 Contrary to the common connotation of the word, VA “pension” is not available only to career military people and their dependents.  Those who practice in Veterans Administration benefits as part of an elder law practice deal mostly with “pension” – particularly the pension flavor called “Aid & Attendance” – much as the practice of elder law in general tends to revolve around Medicaid (because of the circumstances of many clients when they come for an initial consultation.)

3 Pub. L. No. 100-687, 102 Stat.  4105 (1988).  Much of the Act is found at 38 U.S.C. §§ 7251 et seq.

4 Pub. L. No. 109-171.

5 See Stichman & Abrams, Veterans Benefits Manual § 1.1 (2009 Ed.) (hereafter, “VBM”).

6 Criminal penalties remain for charging a fee to a VA claimant in most circumstances.

7 VBM §18.1

8 There are techniques that can qualify a person for VA pension much as there are techniques that can qualify a person for Medicaid.  As the techniques for VA may imperil Medicaid eligibility and vice-versa, a practitioner needs to be familiar with both – and with “back doors” or “escape hatches” for when well-laid plans to astray due to foreseeable, but uncontrollable, circumstances.

9 Program Policy Manual 2432.00.00 (http://www.in.gov/fssa/files/2400.pdj)  The author believes, however, that  this is just the Indiana instantiation of a federal statute or rule.

10 For instance, in the 2011 edition of an official 135 page booklet, “Federal Benefits for Veterans and Dependents” (http://www.1.va.gov/gov/opa/publications/benefitsbook/federal_benefits.pdf).

11 VBM §1.1 (2009 ed.)

12 See note 8.


One Response to “Law Tips: VA Benefits”

  1. […] I have been privileged for several years now to be part of the team that teaches a Continuing Legal Education class to attorneys who want to maintain their Veterans Administration accreditation. One of the sponsors, the Indiana Continuing Legal Education Forum (ICLEF), has posted online some of my written course materials. […]


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