Thursday, February 13, 2014

UPDATE: Spouse for VA Purposes

Who is a spouse for VA benefit purposes?

The United States Code and the Code of Federal Regulations – the rulebook for the VA – state that a spouse is a person of the opposite sex, whose marriage meets the requirements of the state in which the parties resided at the time of the marriage.  [1]

The Supreme Court recently struck down a provision in the Defense of Marriage Act that stated that for federal purposes, a marriage between members of the same gender could not be valid.  Why did the Supreme Court strike this down?  Primarily because marriage has historically been a state law question.  In other words, each state has defined the rules for marriage as that state sees fit.  Recently, some states have changed their laws to allow two people of the same sex to marry.  Since some state laws conflicted with parts of the Defense of Marriage Act (DOMA), the Supreme Court ruled that that part of DOMA was unconstitutional and ordered the federal government to change its regulations to comply.

What does that mean for veterans who are in same sex marriages – or are thinking about marrying someone of the same sex- for purposes of qualifying for veteran’s benefits that are available to veterans with spouses?   The answer currently is that it seems to depend on which state the veteran is in when he or she applies for the benefits. The Obama administration decided to extend military spousal benefits to legally married same –sex couples.  However, since whether a same-sex marriage – or any marriage- is legal is left to the individual states, whether a couple is legally married for military and veterans benefits will depend on which state the parties are in when they apply for the benefits. [2]

For example, Georgia does not allow same sex marriages.  In fact, Georgia does not recognize same-sex marriages even if they were entered into in a state that does allow them.  If a veteran married legally in another state,  moves to Georgia with his or her spouse and then applies for benefits claiming a spouse as a dependent, the VA most likely will not award the benefits since the marriage is not valid in Georgia. 

Contrast this with the same veteran who applies for the same benefits in a state in which same-sex marriage is valid.  He or she will be eligible for the increase in benefits based on the spouse and will most likely be awarded the benefits.  If he or she then moves to Georgia with the spouse, he or she will continue to receive the increased award based on a spousal dependent.  The VA will not likely take the benefits away once awarded.

The VA is currently in the process of changing the language in its code sections, federal regulations, and manuals to comply with the decision in the Windsor case. 

Until the VA does re-write its manuals, and until the new marriage policies are known to all those at the VA, veterans and their spouses may face inconsistent decisions from the VA and my need to fight to obtain benefits to which they are entitled.

Recently, Attorney General Eric Holder announced that the Justice Department would no longer deny certain benefits to legally married same-sex spouses.  Specifically, Holder stated that spouses would not be compelled to testify against their spouse in court, that spouses can now visit their incarcerated spouse in a federal penitentiary, and that couples can now apply for federal benefits under programs such as the Sept. 11 victim’s fund.   Holder did not specifically mention any VA programs, however, the statements seem to be an indication that the government intends to end forms of discrimination against same-sex couples at least in the programs which are truly federal programs.

[1] 38 U.S.C. Section 101(31) and 38 C.F.R. Section 3.50(a) and Section 3.1(j)

[2] Currently 13 states and the District of Columbia have legal same-sex marriage.  The states allowing same-sex marriage:  California, Connecticut, Iowa, New Hampshire, Massachusetts, Delaware, Minnesota, Rhode Island, Vermont, Maine, Maryland, Washington, and Washington, D.C.

Thursday, February 13, 2014

Income for VA Purposes - IVAP

Unreimbursed Medical Expenses

The VA terminology is confusing, to say the least.  We’ve discussed what a Pension is, but you may be wondering how the VA figures out Income for VA Purposes, or IVAP. 

The definition of IVAP means all of the income received by the individual applying for the benefit, and all of the income of the spouse as well.  That income may include Social Security, Pension, mandatory IRA distributions, annuity payments, and interest income.  This list is not exhaustive, but basically any money that the veteran, spouse, or surviving spouse receive may be considered income.  However, for IVAP purposes, the term income actually means all the money received, minus unreimbursed medical expenses – or “UME’s” in VA-speak.  In other words, medical expenses that are not paid for by insurance, Medicare, long-term care insurance, or another program or party may be considered to be unreimbursed medical expenses.

So what kinds of expenses are unreimbursed medical expense?

The answer, like the answer to so many other legal questions is, that depends.

If the veteran, spouse, or surviving spouse is in a nursing home or an assisted living that provides custodial care and assistance with the activities of daily living, the room and board at the facility may be considered to be an unreimbursed medical expense. 

A recent “fast letter” issued by the VA outlines the circumstances under which the room and board may be deducted from income.  The letter, which is an explanation to those VA employees trying to determine which medical expenses qualify, states that

“The cost of room and board at a residential facility is a UME if the facility provides custodial care to the individual, or the individual’s physician states in writing that the claimant must reside in that facility to separately contract for custodial care with a third-party provider.

A facility provides custodial care if it assists the individual with two or more ADL’s.

If the facility does not provide the claimant custodial care, or the claimant’s physician does not prescribe care by a third-party provider in that facility, VA will not deduct the cost of any medical or nursing services obtained from a third-party provider.

So you can see that if a claimant is deficient in Activities of Daily Living (ADL’s), and the facility provides assistance with those ADL’s, the money paid for rent and food at the facility will be deducted from the income.  If, however, the claimant is at facility that is better characterized as an independent living facility, and the claimant is only there because they need assistance with meal preparation and transportation, the room and board will not be considered to be a medical expense and cannot be counted to offset income.

Can room and board ever be considered as a UME if the resident is in an Independent Living Facility?  If a physician prescribes third-party custodial care that can only be provided in the facility, the room and board can be used as a medical expense.  Most ILF’s contract with home-care companies to provide assistance with ADL’s to their residents.  The facilities themselves are not licensed to provide such care, so they make arrangements with other companies to send their employees in to provide the care.

So, in addition to room and board, what other medical expenses can be deducted?

For an initial application, the VA considers what they characterize as prospective, recurring expenses that are likely to continue for the twelve months following the initial application.  Home care provided by an in-home attendant may be deducted from income if the veteran or spouse has been rated as housebound or in need of Aid & Attendance.  In that case, the attendant need not be a licensed healthcare professional.  If the veteran or spouse has not been rated as housebound or in need of the Aid & Attendance of another person, the in-home attendant must be a licensed healthcare professional in order for the expenses to count as unreimbursed.

The VA considers health or hospitalization insurance premiums for both the veteran and the spouse to be unreimbursed medical expenses.  The monthly Medicare insurance premiums deducted from Social Security are considered unreimbursed medical expenses.

For the most part, the VA does not count payment for prescription medications as unreimbursed medical expenses on the initial application.  However, prescription expenses may be claimed as additional expenses after the first year.  

Friday, November 29, 2013

How to Talk to Your Parents, Friends, In-laws, etc. about VA Benefits

How to talk to your parents,

Siblings, Friends and Neighbors about Veterans Benefits

Most of us know someone who served in the military at some point in time.  We’ve seen pictures of them in uniform posted on their walls, or we’ve heard them talk about when they were in Korea, or Viet Nam, or Fort Benning. 

Today, there is a lot of anxiety about healthcare costs, education costs, and long-term care costs.  Have you ever asked someone who served in the military whether they are receiving any benefits or have thought about receiving benefits?  Often veterans or their families will say, “When my dad came back from the war, he never wanted to talk about the war and the VA just reminded him of a really bad time in his life. “  Or, my dad visited a VA hospital and it was too confusing and overwhelming for him.  He was told he didn’t qualify for anything because he had too much money, or didn’t serve at the right time or had never been injured in service, so he just gave up.

To be frank, the VA often does a really bad job of informing veterans about what benefits they might qualify for.  The VA is especially bad in giving advice over the telephone.  Of course, as most of us know, in any business the advice you get depends on who happens to answer the telephone when you call.  What I’ve learned as an attorney is that the caller has to be responsible for asking enough questions and asking them in as many different ways as possible to get to the right answer.  Step one is often to learn the language of the institution you are calling.  When you call your doctor’s office, you try to convey your symptoms in a way that will let the office know enough about your illness or injury to let you know whether you need to rush to the emergency room, or whether your symptoms are nothing to worry about.  You know the doctor will want to know whether you have a fever, whether you are bleeding, when was the onset of the fever.  In order to get the best advice, you are responsible for using language that the doctor’s office will understand.

In order to get the best advice possible from the VA, and in order to help your family and friends get the benefits they deserve, you can learn how to talk to them about VA benefits.

First, you can ask about their service.   When I was a kid, we had a green gas mask stored in our basement storage closet.  My dad would take it out occasionally – usually when entertaining the male teachers he supervised – and tell them the story of how he was part of a unit that used chemicals to experiment on monkeys.  My father was stationed at the Aberdeen Proving Grounds during the Korean War where they experimented with chemical weapons.  I know that my father was stationed there and that my sister was born while he was stationed there in 1953.  I also know that shortly after my sister was born, my dad must have been discharged since they moved back to South Dakota where my dad was a teacher for the next 40 years.

But, how can I prove that my dad was in the service?  First, I can ask him if he has his discharge paper.  The discharge paper is often referred to as the DD-214, for the Department of Defense form number that is used now for most discharges.  However, in WWII and the Korean War it may have been referred to as a separation paper, a Certificate of Discharge, an Enlisted Report and Record of Separation, or some similar title.

There is a lot of information on the discharge paper, and the veteran will need it or a copy to get benefits.  One question you can ask is whether the veteran has that paper or if he or she recorded the paper with the county in which he or she was living at some point after discharge.  If the veteran does not have that paper, he or she will need to get one.  You can help get the discharge paper, but you will need to know the following information:  Branch of Service, Dates of Service (approximate is okay, although the more accurate the information the better chance you’ll have of getting the document) and Social Security number.  You’ll need to know the veterans full name – make sure it is the name he or she used while in the service.  I’ve known veterans who never used the name on their birth certificate, but their military records are all under the name as on the birth certificate.  Be sure you know the spelling used on the birth certificate, too.

If you don’t have the paper, you can order it from the archives.  Here is the website:

There was a fire in the storage facility in St. Louis in the 1970’s where many military records were stored.  Thus, some records were destroyed.  Most can be reconstructed, but it may take a little longer to get the records if they were part of that group destroyed in the 1970’s.   You will need to have some patience.

If your parent is reluctant to find out what services are available through the VA or at the VA, ask what experiences they’ve had in the past – if any- and ask whether they would like to hear some of the benefits that are available.  If you know someone in a similar situation who is receiving benefits, you can discuss what benefits that person is receiving and maybe something about their experience with the VA.

I often talk to veterans who feel that the VA has been a lifesaver for them -especially for unemployed or self-employed veterans who may not have cheap affordable healthcare available to them in their area.   My friend swears by the care given to him at the VA.  He is a middle-aged, self-employed, Viet Nam Veteran, who needed care for a heart condition that he could not afford without health insurance.  He found that he was entitled to care at the VA, and since then he has been treated regularly at the VA.

Another client, a successful man in his 60’s, discovered that he had a form of cancer.  Since he was “in country” in Viet Nam, he is now receiving a service-connected disability payment for the cancer.  In addition, the VA is evaluating his claim for PTSD.

Many of my veteran clients now receive hearing aids and other help for hearing loss through the VA.  When they were young, they didn’t notice that their experience around noisy combat affected their hearing, but in older age, the hearing loss is apparent and the treatment for that hearing loss is their right.

I encourage my clients to enroll in the VA healthcare system by filing a form 10-10-EZ, Application for Health Benefits.  You can find that online at

Wednesday, November 27, 2013

Nursing Home Care for Veterans

Nursing Home Care for Veterans

The VA provides “Community Living Centers”, or what used to be called Nursing Homes.  These are operated by the VA, and are usually in a Veterans Administration Hospital.  These Community Living Centers (CLC’s) provide rehabilitation for veterans recovering from injury and illness in the short-term, but also provide long-term skilled nursing care for veterans who need care for long periods of time for a service-connected injury.

For veterans rated at 70% service-connected or higher, or for those who need nursing home care for their service-connected injuries, the VA pays for their nursing home placement as part of their package of healthcare benefits.

The CLC’s are available for non-service connected veterans who are enrolled in VHA healthcare, and need short term services such as rehabilitation, hospice, respite, and for those waiting for placement in the community.

VA provides care to veterans based on a priority system.  There are currently 8 categories of veterans based on service- connection and financial need.  For example, a veteran who is 50% service-connected or higher is in category 1.  A non-service connected veteran with significant assets and income is most likely going to be enrolled in category 8.

Veterans in category 1 will be eligible for placement in a CLC, and will not have a co-pay, but those in category 8 will be placed in a CLC only if there is availability and no one in a higher category needs the bed.  The veteran in category 8 will pay a daily co-pay for services in the CLC.

In Atlanta, the CLC is located in the VA hospital on Clairmont Road, and is almost always full to capacity with a waiting list.  For those veterans for whom nursing home care is not part of the package of medical benefits, they may be able to find placement in one of the two Georgia War Veterans Homes.

The two Georgia War Veterans Homes in Georgia are not run by the national VA, but are available to veterans.  The Georgia Department of Veterans Services and the Georgia Health Sciences University operate the Georgia War Veterans Nursing Home in Augusta.   The Georgia War Veterans Home in Milledgeville is operated by United Veteran Services of Georgia, Inc., which operates the home for the Georgia Department of Veterans Services. 

In order to be eligible for admission to a Georgia War Veterans Home, the person must be domiciled in Georgia, and must have resided in Georgia for the five years immediately preceding admission.  He or she must have been a “war veteran”, defined as any veteran who served on active duty in the Armed Forces of the U.S. during wartime or during the period between January 31, 1955 and May 7, 1975.  In addition, the U.S. Department of Veterans Affairs must approve them as “eligible for care and treatment”.  Veterans accepted into the Georgia War Veterans Homes will be required to pay some expenses such as Medicare or health-care insurance deductibles and co-pays.  The forms to apply for admission to the Georgia War Veterans Homes are found at

Sunday, November 24, 2013

Services Available to Blind and Low Vision Veterans

VA and Blind and Low Vision Veterans

As the veteran population ages, and as veterans come back from war with increasing numbers of traumatic brain injury (TBI), the number of veterans who are legally blind or have low vision is increasing exponentially.  Low vision and blindness can be caused by accidents, and brain injuries, but many veterans are losing their vision because of age and disease-related factors, such as macular degeneration and diabetes.

President Franklin D. Roosevelt signed an Executive Order on January 8, 1944, which declared:  “No blinded serviceman from World War II (WWII) would be returned to their homes without adequate training to meet the problems of necessity imposed upon them by their blindness.”   After the war ended, the VA accepted the responsibility of adjustment training for blinded veterans.

Legal blindness is defined as: central acuity of 20/200 or less in the better eye with ordinary corrective glasses; or, central visual acuity better than 20/200 in the better eye, and a field defect in which the peripheral field at its widest tested diameter is less than 20 degrees.  The VA estimates that there are 160,000 legally blind veterans.

In addition, there are over one million veterans with low vision, which is defined as uncorrectable visual impairment between 20/70 up to legal blindness.

The VA addresses the problems associated with veterans who are blind or have low vision in many ways.  Currently, there are 10 Blind Rehabilitation Centers (BRC), and many Visual Impairment Services Teams (VIST) throughout the country. 

The Blind Rehabilitation Centers offer daily training and counseling for veterans who are totally blind, as well as those veterans who have low vision. The programs are designed for inpatient stays, but in certain circumstances the veterans can receive the services on an outpatient basis. The programs offer classes in orientation and mobility, including training on aids for travel, such as canes.  Veterans are fitted with low vision devices and are trained in how better to use their remaining senses.  The VA also funds training for one family member who will play a significant role in the Veteran’s continued adjustment to community living.

Veterans and active duty personnel who are eligible for VA health care and meet the criteria of legal blindness or need comprehensive treatment in order for the veteran’s safety or functional independence or to be restored.

For low vision veterans, there is an outpatient program similar to the BRC called VISOR, or visual impairment services outpatient rehabilitation.  VISOR is a nine-day outpatient program, which teaches skills similar to those taught in the BRC’s.  The difference is that for those veterans enrolled in VISOR, they must be able to take care of all of their own activities of daily living.  VISOR does provide safe accommodations where participants can stay during the nine-day outpatient treatment.

Here is a link for more information about the blind and low vision services available to veterans:

Saturday, November 23, 2013

Vocational Rehabilitation Services for Veterans

Vocational Rehabilitation 

What are vocational rehabilitation benefits?

The Department of Veterans Affairs provides services for qualified veterans with service-connected disabilities who need assistance to become suitably employed or to maintain employment or who need assistance or training in order to become independent in daily living.

The services provided may include counseling, as well as education and specialized training. 

Which veterans are qualified?

In order to qualify for the program, the veteran must either have, or will receive, an honorable or other than dishonorable discharge, have more than a 10% service-connected disability rating, and must apply for vocational rehabilitation services.

Generally, the veteran must apply for the vocational rehabilitation within 12 years from the separation from active duty, or from the date the veteran was first notified of a service-connected disability rating.

Once the veteran applies, a VA Vocational Rehabilitation Counselor provides a Comprehensive Evaluation, which assesses the veteran’s interests, aptitudes and abilities to determine whether the veteran is entitled to the vocational rehabilitation services and whether the service-connected disability impairs the veterans ability to find or hold a job with the skills the veteran already has.

What services are available?

Some of the services the veteran may be eligible for include post-secondary education benefits, on the job training, assistance with finding a job, medical referrals, and independent living services for veterans unable to work because their disabilities are so severe.

Are there any services available for children or spouses of veterans who need education or rehabilitation?

Vocational rehabilitation services may be available for children with spina bifida, who have one or both parents who served in the Republic of Vietnam during the Vietnam War, or in certain military units in the demilitarized zone of Korea between September 1, 1967, and August 31, 1971.  

Friday, November 22, 2013

Service Connection: What is it?

Service-Connection:  What is it?

The Department of Veterans Affairs administers many benefits to veterans and their spouses and families, but some benefits are available only to those who are classified as “Service-Connected” veterans.

Service-connected means that the veteran was injured or developed or contracted a disease or aggravated a pre-existing injury or disease while he or she was on active duty with one of the branches of service – the Navy, the Army, the Marines, the Air Force or the Coast Guard, or their Reserve Components- and that the injury or disease caused a present disability.   Some disabilities or diseases are presumed to have been caused by the veteran’s service if he or she develops the disease or becomes disabled after leaving the service.  We will discuss presumed service connection in a later post.

Some benefits available to service-connected veterans are financial, and the VA pays the veteran a certain amount of money each month based on the level of disability.  Think of that as “worker’s compensation” – the VA is paying the veteran for the loss to his or her earning abilities.  The VA prescribes a percentage based on a complicated ratings system, and a disability can be rated at 0% - meaning no compensation will be paid because, although the veteran may have some form of disability that can be traced to his or her time in the service, the veterans earnings potential is not impaired by the disability.  If the disability later impairs earnings, though, the rating can be increased.  The ratings increase in increments of 10%.   Once a disability is rated at 10%, the veteran will receive a monthly check from the VA.

Service-connected veterans receive other non-monetary benefits from the VA, including healthcare benefits and vocational rehabilitation services.   The Veterans Health Administration (VHA) provides a host of healthcare benefits, but the package of benefits available to an individual veteran, and whether he or she will have a co-pay for those benefits, depends on his or her placement in one of eight categories, known as Priority Groups. Those in Priority Group One have the most complete healthcare benefits package, while those in Priority Groups 7 and 8 must pay a co-pay for any healthcare services provided. 

The VA is only able to provide healthcare benefits based on the amount of money Congress gives them each year, so in times when the money runs low, the VA could provide benefits to those only in the higher groups.  Those veterans rated at least 10% service-connected are placed no lower than Priority Group Three. 

Friday, November 15, 2013

Veterans Eligible for Both VA Healthcare and Medicare? Who Pays What?

Eligible for both VA and Medicare? 

Who pays what?  Do I need insurance if I’m eligible for VA healthcare?

You’ve been approved for VA Pension or Compensation, and you will be receiving healthcare and prescription drugs at the VA facility.  You also have Medicare part B and Medicare part D.  Do you need both? 

Medicare Part A pays for inpatient hospital care for up to 90 days per benefit period, skilled nursing care partial pay for up to 100 days each benefit period, home healthcare for up to 100 days, and hospice care.

Medicare Part B pays for doctor’s visits, ambulance services, preventive care services, and durable medical equipment, as well as many other services.

Medicare Part D pays for outpatient prescription drugs.

For veterans that qualify, the VA provides care in VA healthcare facilities, as well as contract care in other facilities when the VA cannot provide the required care.  The VA authorizes care at non-VA facilities when necessary medical services are not routinely available at a VA facility, or the VA determines that the services can be obtained more economically outside the VA.  The non-VA care must be authorized by the VA in advance.

Unless the veteran has other healthcare, or his or her healthcare is being provided by the spouse’s employer, once he or she turns 65 she must enroll in Medicare Part B and D.  If she does not enroll at age 65, when and if she finally enrolls, she will have to pay a Part B and/or a Part D premium penalty which increases for every year she does not enroll in the programs.

The veteran may want to enroll in Part B in order to receive healthcare services from Medicare approved providers that provide services he may not be able to receive in a VA facility.  In that case, it is important to enroll at age 65. 

If the veteran is eligible for prescription medications from the VA, he may choose not to enroll in Medicare Part D.  VA prescription coverage is considered “creditable”, meaning it is as good, or better, than Medicare Part D coverage.  What that means for the veteran is that he can delay enrolling in Part D and not suffer a penalty.  However, if the veteran loses his prescription coverage, he has 63 days to enroll in a Part D plan or he will be penalized. 

When deciding whether or not to enroll in Part D, the veteran should consider if he will get all of his prescriptions from the VA.  The VA will only provide coverage of the drugs the veteran receives from the VA.  A veteran is eligible for the prescription benefit if he or she is enrolled in and receiving health care from the VA.  The prescriptions must be written by a VA health care provider, or a VA-authorized provider.   A VA health care provider will review prescriptions written by a private health care provider to determine whether the VA can rewrite the prescription and dispense it from a VA pharmacy.  Most prescriptions can be mailed to the home, or can be picked up at the VA pharmacy.  Depending on what priority category the veteran is in, he or she may have a co-pay for each prescription received.  Co-pays for prescriptions are between $8.00 and $9.00 per prescription.

Friday, November 15, 2013

Service Connection: How do I Prove It? Part 2

Service Connection:  How Do I Prove It?

Part 2:    Proving Injury in Service

Once you’ve proven you are a veteran, how do you prove that your current disability was caused by something that happened to you in the service?

The VA can pay compensation for a condition that was incurred in service, for a condition that existed before entry into service that was aggravated during service, or for a disability related to a disease that is statutorily presumed to be related to service.

If you were injured or contracted a disease while in the service, and you are currently suffering from a disability, you have to prove that the injury or disease occurred while you were in the service, that there was medical evidence of your injury or disease while you were in service, and you must provide medical evidence that you are currently disabled.  There should be some evidence in your military records that an incident occurred, or that you contracted a disease while you were in the service.  If there is no evidence of the incident in your record, you can use your own statement and or statements of those who were with you when the incident happened to prove that you were injured.  Then, the VA may be required to get your military healthcare records from military hospitals and doctors that show that you were treated for an injury while you were in service.  The VA may also be required to help you get a medical exam to show the current disability.   Although the VA may have a requirement to get your military healthcare records, if your injury or disease occurred many years before your present disability, you may want to write to the hospitals yourself to get the records.  You will need to remember the approximate dates of treatment, along with your name, social security number, and any other information you can think of that might help them find your records.   Some of the military hospitals have closed, so you may have to do some research on where the medical records were sent when the facility closed.

To prove an aggravated service-connected condition, you must show that you had a condition before you entered the service.  Your service entrance medical records should show the evidence of the condition.  Then, you will need to be able to show that an incident occurred that caused the condition to get worse while you were in the service.  This evidence should be in medical records of treatment in military or civilian hospitals while you were still on active duty.  If there is no evidence of an incident that aggravated the condition, you will have to show that your current disability is not the result of the normal progression of the disease.

We discuss presumptive service-connected diseases in subsequent posts. 

Establishing a claim for Post-Traumatic Stress Disorder requires that you provide a statement about a traumatic event, or “stressor” that occurred during service, that you have a diagnosis of PTSD, and an opinion that a VA psychologist or psychiatrist believers that the stressor was sufficient to cause PTSD.

Proving a service-connected disability may seem daunting.  However, veteran’s service organizations are there to help.  Here is a link to a chart of state veteran’s service organizations:  Just click on your state and find the closest state VA office.

Monday, November 4, 2013

Veteran's Service-Connection: How Do I Prove It? Part 1: How Do I Prove I'm a Veteran?


How Do I Prove It?

Part 1:  How Do I Prove I Am A Veteran?


When a member of the armed services leaves the military and then later develops a disability, what do they have to do to prove the disability was caused by their service?

There are three things that the veteran must prove in order to receive a decision that the disability is service-connected, which could entitle them to “compensation” from the VA.

1st, they have to prove that they are a veteran.  2nd they have to show that they have a disability and 3rd they have to show that the disability is most likely related to something that happened while they were in the service.

A veteran  “means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable.” 38 C.F.R. Section 3.1d.  

The person can prove that their veteran’s status by producing an official separation document.  For veterans who were discharged from service after 1950, the separation document is the DD-214, Certificate of Release or Discharge from Active Duty (Report of Separation).  For those veterans discharged before 1950, there were various official forms used to show that the veteran was discharged.  Most of those documents have Separation in the title of the document.

If a veteran does not have his or her official Separation Report, he or she can order it through the National Archives.  Here is a link to the website:

The veteran can either mail or fax a request for the records, in which case you should download a form – SF-180 and mail or fax it to the National Archives, or you can apply online at eVetrecs at this website address:

Most of the discharge records are stored at the National Personnel Records Center in St. Louis, Missouri.  In 1973, the building housing the records caught on fire.  Consequently, 80% of the records of Army personnel discharged between Nov. 1, 1912 and January 1, 1960 and 75% of the records of Air force personnel discharged between September 24,1947 and January 1, 1964 were affected.  While the National Archives has been able to reconstruct many of the records, it may take a bit longer for a veteran discharged between the affected dates to receive an official record of the military discharge.

When requesting records, you should include the following information, if known:

  • The veteran's complete name used while in service
  • Service number
  • Social security number
  • Branch of service
  • Dates of service
  • Date and place of birth (especially if the service number is not known).
  • If you suspect your records may have been involved in the 1973 fire, also include:
  • Place of discharge
  • Last unit of assignment
  • Place of entry into the service, if known.

The DD-214 or Report of Separation will contain the following information:

  • Date and place of entry into active duty
  • Home address at time of entry
  • Date and place of release from active duty
  • Home address after separation
  • Last duty assignment and rank
  • Military job specialty
  • Military education
  • Decorations, medals, badges, citations, and campaign awards
  • Total creditable service
  • Foreign service credited
  • Separation information (type of separation, character of service, authority and reason for separation, separation and reenlistment eligibility codes)

Since the veteran or surviving spouse will need this document to apply for all veteran’s benefits, it’s a good idea to locate this important document before you need it and store it in a safe place or record it with your county recorder so you’ll be sure to find it when you need it.

Monday, November 4, 2013

So Who is a Military Veteran?

So who is a military veteran?

Although it may seem that defining a military veteran should be easy, the term “veteran” may be defined differently depending on the calendar years the person served in the military, whether the person was in the Reserves or National Guard, and it may be defined differently based upon the programs or benefits the person is seeking.

The basic definition of a veteran is “a person who served in the active military, naval or air service, and was discharged or released under conditions other than dishonorable. 

The first prong in the definition, then, requires “active service.”  So, what is “active service”?

According to the VA’s manual, active service includes “active duty” defined as full-time duty in the Armed Forces, other than active duty for training.  In addition, active duty includes any period of active duty for training in which the individual became disabled or died from an injury incurred or aggravated in the line of duty; or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training.  (See 38 U.S.C. Section 101(24).

For compensation and dependency and indemnity compensation purposes, the persons whose death was due to “willful misconduct” are excluded from the definition of “veteran”.

What about people who served in the Reserves or National Guard?

Although persons who served in the Reserves do not generally meet the “active duty” requirements for veteran status, a Reservist can meet the criteria if he or she dies or becomes disabled from a disease or injury incurred or aggravated during a period of active duty for training or inactive duty training, or dies or becomes disabled of a acute myocardial infarction, cardiac arrest, or a cerebrovascular accident that occurred during active duty or inactive duty training.  A Reservist may also attain “veteran” status if he or she performs full-time duty in the Armed forces other than active duty for training purposes.

In addition, a Reservist may be classified as a “veteran” if the Reservist served full-time and for operational or support purposes. 

Members of the National Guard do not attain “veteran” status if they serve on active duty for training purposes, unless the guard member has a service-connected disease or injury incurred or aggravated in the line of duty during their active duty for training purposes.  If the Guard unit, or the individual member of a Guard unit is ordered into active duty under the authority of 10 United States Code, the member(s) are serving on Federal Active Duty, and such service does count as active duty.

A second prong of the definition of “veteran” provides a requirement for a minimum number of days or years the person must have served on active duty. 

With some exceptions, in order to be classified as a “veteran” the person must have served for 24 months of continuous active duty, or have served for the full amount of time for which the person was called or ordered to active duty.  For instance, if a person is called up for 12 months, and serves the entire 12 months that period of time could qualify him or her for veteran’s status.    In some cases, a person who is serving as a regular enlisted member of the armed forces may be discharged within one year of the expiration of his enlistment, and may still be considered a veteran for purposes of veteran’s benefits.

Finally, the person must have been discharged under other than dishonorable conditions.  A discharge classified by the branch of services as honorable, general, or discharge under honorable condition is binding on the VA.

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The Elrod-Hill Law Firm,LLC assists clients with Estate Planning, Veterans Benefits, Medicaid, Elder Care Law, Probate, Special Needs Planning and Pet Trusts in the North Atlanta area including the counties of Dekalb, Gwinnett and Fulton.

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