By Zach Bloxham, JD
Assisting Veterans and their spouses in planning for long-term care is one of the most professionally rewarding and emotionally satisfying experiences the practice of law can provide. This article introduces the five tests a claimant must meet to attain VA eligibility.
The quantity of VA programs can be difficult to itemize and even more onerous to understand. Each benefit has its own purpose and eligibility criteria. This can lead practitioners to stick with what they know and ignore the helpful information that is readily available to them. Some of the programs, such as Dependency Compensation, are not means-tested. Others, such as VA Pension, have strict limitations that, if not met, will be a bar to a successful application. As such, the rules governing specific programs within the VA umbrella of benefits are distinct.
To qualify for VA pension benefits, a claimant must successfully navigate five inquiries: service, medical, income, asset, and transfer. Failure to satisfy one of these will cause the application to fail as a whole. Failure to meet some criteria can be overcome with proper planning; however, other failures are fatal to the claim, and no remedial measures are available.
1. Service Test
While all VA benefits have some level of service component to the analysis, VA Pension has a specific service regime that individual claimants must meet to garner eligibility. To meet the service requirement, a claimant must pass a three-pronged analysis: (1) the Veteran must have been discharged in circumstances other than dishonorable, (2) the Veteran must have served at least 90 days of active-duty service, and (3) the Veteran must have served at least one day of active service during a Congressionally-defined wartime period.
Veterans, spouses, family members, and even attorneys often prejudice potential claims by mistakenly assuming additional restrictions on the service test that do not exist in VA rules or regulations. For example, a Veteran’s discharge need not be explicitly specified as honorable. An alternative discharge, such as other or general, is sufficient to meet the standard. The prohibition is on a discharge that is dishonorable.
Additionally, the applicable wartime periods as defined by Congress do not parallel the dates of active hostility. This can lead to misunderstanding by potential claimants, who may believe that the Veteran must have either seen combat or have had boots on the ground to qualify. While the latter may be required for a small segment of Vietnam-era Veterans, the general rule is that the Veteran does not need to have been in theater to meet the service test for VA Pension.
A client of mine served as a Military Policeman in Germany, arriving there months after the war in Europe had officially ended. For VA Pension eligibility, the applicable wartime period for World War II begins with Pearl Harbor and runs until the last day of 1946, thus allowing my client to meet the standard. Additionally, many Veterans served stateside or in other areas far from where their life was in danger. They nevertheless qualify under the service test, as the standard is based on the quantity of days served (at least 90) and when those days transpired (during a wartime period).
2. Medical Test
A claimant can meet the basic pension requirements for the medical test by being aged 65 or older. The VA presumes that a claimant aged 65 or older is disabled for purposes of the benefit program. This might come as a shock to your client, but it also works to their benefit. Additional monthly pension benefits—Housebound and Aid and Attendance—are available to claimants with other health struggles. The latter is where practitioners should typically, rightly, spend their time to ensure the claimant can receive the highest award under the law.
To meet the medical test for Pension with Aid and Attendance, a typical claimant must be above age 65 and meet certain presumptions related to health status; namely, they must be blind or nearly so, a patient in a nursing home, or need the assistance of another person for the activities of daily living (ADLs). The ADLs considered in determining a Veteran’s eligibility for Aid and Attendance are outlined in the applicable regulations and include eating, bathing, dressing, toileting, and prosthetic adjustment, or protection from hazards incident to the Veteran’s daily environment due to mental or physical incapacity that requires care on a regular basis.
It is important to note that the medical test is not so binary as to make it difficult to ascertain. The regulation expressly states that a claimant is “not required” to demonstrate “all of the disabling conditions” outlined. The medical test is a query about the claimant’s “condition as a whole.” It is only necessary to establish that the claimant is “so helpless as to need regular aid and attendance, not that there be a constant need.”
This frees the attorney to think expansively regarding the medical test. One day, a client discussed his desire to seek Veterans benefits. Based on his appearance, I did not think he could qualify medically. Pursuing due diligence, I asked the client to move forward with preparations. He and his doctor filled out the required VA medical form and sent it back to me for review. To my surprise, the gentleman’s health status was more than sufficient to qualify. It was a collection of health issues, not just one, that was dispositive. A practical tip is to assume qualification until there is documentary evidence to the contrary.
Additionally, the attorney must properly review the documentary evidence when it is received to ensure that a realistic assessment is provided. One afternoon, I spoke to a client in my office who expressed a desire to seek VA benefits. He was not only feeble but weakened to a point where it was unsafe for him to stand for more than a few minutes at a time. You can imagine my surprise when I received the VA form from the client’s physician stating that the client golfed three times per week. Not wanting to discount the miraculous, I called the client to verify this statement. He informed me that he indeed goes golfing three times per week but does not take a single swing; he merely drives the golf cart and keeps score for his grandson. I laughed, requested the doctor resubmit the form, and was happy to see that the subsequent form was truer to reality.
3. Income Test
VA regulations require an application for pension benefits to be. . .
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