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va aid and attendance benefits

One of the most misunderstood categories of VA benefit is the aid and attendance benefit.

Why? The term seems fairly innocuous and easily understood, after all.

Well, when it comes to VA aid and attendance benefits, there is a lot of bad information and misinformation out there.

Most of it is harmless – someone just got confused over terms and used imprecise language when describing a benefit.  Other times, it is a bit more harmful.

For example, the conversation aboutVA aid and attendance benefits is dominated by what I call the “Pension Poachers”.

“Pension Poachers” are  a special breed  of insurance salesman (or in worse scenarios, unlawful ‘runners’ for attorneys practicing outside their jurisdiction or without knowledge of VA Benefits law) that prey on elderly benefits.     You can read all about Pension Poachers by clicking here.

Do a Google search for “VA Aid and Attendance Benefits” and the first 10 pages of results are littered with people pushing this type of benefit – almost always to the exclusion of a discussion of the many other types of aid and attendance benefits which might yield a greater benefit to the Veteran or his surviving spouse.

Fortunately, the VA has proposed new regulations governing the Non-Service Connected Pension, and the abuses perpetuated by Pension Poachers.  Most of the information about these changes is written by the very poachers that will see limited profit from these rule changes. The most objective information about these changes I have found is on the William & Mary Law School Vet Law and Benefits Blog.

Well, part of the reason is that there are several TYPES of aid and attendance benefits.

While the criteria for the different types ofaid and attendance benefits are similar, they are not always the same.

And you do NOT need to be elderly to qualify for aid and attendance.

So, in the interest of getting Veterans and their surviving spouses complete information about Aid and Attendance benefits that they might be eligible, here are 4 Types of VA Aid and Attendance You May Never Have Heard About:

#1: VA Aid and Attendance Benefits as an Increase to Improved Pension.

Veterans who served for 90 continuous days of active duty during certain periods of war are often eligible for a Non Service Connected pension if they are disabled and unable to work.  The disabilities for the so-called Non Service Connected Pension do not need to be related to military service.

In fact, for Non Service Connected Pension Purposes ONLY, reaching the age of 65 is considered a qualifying disability.

The amount of the payment for the Non Service Connected Pension is the difference between a number known as the Maximum Allowable Pension Rate (MAPR) and the Veteran’s actual income (which, after accounting for certain deductions, must be below the MAPR for his or her family size).

Where does the Aid and Attendance come in?

Well, when a Veteran is in receipt of the Non-Service Connected Pension, and is  in need of aid and attendance, they will receive a substantial additional monthly allotment.

To establish entitlement to this additional payment, the Veteran need only show that they are in a nursing home (in which case the Aid and Attendance increase is automatic) or that they meet the criteria for aid and attendance:

  • Unable to dress or undress without help
  • Unable to  keep ordinarily clean and presentable without help;
  • Need for frequent help adjusting special prosthetic or orthopedic appliances (excluding  adjustment of appliances which normal persons would be unable to adjust without aid);
  • Unable to eat due to loss of coordination of upper extremities or because of extreme weakness;
  • Unable to “attend to the wants of nature”;
  • Physical or mental incapacity requiring  care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to the daily environment.

These criteria are the common theme running through the entitlement to aid and attendance benefits of all sorts.

If you are considering applying for this increase in benefits to your Non Service Connected Pension, I cannot more strongly urge care in selecting your representative.

There are some real dirt-bags out there preying on the elderly Veteran and using some offensive and high pressure sales tactics to lure less educated and elderly Veterans who feel financially trapped due to high medical bills into a scheme that often ends poorly.

This benefit is a legitimate tool to use in establishing a Veteran’s estate plan.   There are GOOD attorneys out there that help Veterans receive this benefit when they are eligible for it.

I won’t harp much longer on the Pension Poaching aspect of this benefit – except to say this:  if you are considering applying for this benefit, please give serious consideration to consulting with 2 – different – attorneys:

1) a VA accredited attorney, particularly one that is a member of the National Organization of Veterans Advocates (NOVA)…you can find the NOVA membership list by clicking here.

2) An attorney, licensed in your state, and qualified through experience and education to discuss Wills, Trusts and Estates.

You may find yourself with a significantly reduced retirement nest-egg – or worse, a letter from the VA claiming that you owe THEM money – if you jump into the shark-infested Aid and Attendance waters without protection.

#2: VA Aid and Attendance Benefits as Special Monthly Compensation.

Special Monthly Compensation (SMC) is a term used to describe a wide array of benefits that are available to Veterans receiving VA disability compensation at the 100% level.

Special Monthly Compensation is a very “thick” and confusing area of VA Disability, so please consider talking to a VA accredited attorney to assist you in applying for this benefit.

One form of Special Monthly Compensation is SMC(l) – that’s a little “L”, not a “1” – and it is available to Veterans whose service-connected disability creates a need for aid and attendance.

The criteria for this benefit are listed at 38 C.F.R § 3.352(a), and are summarized below:

  • Unable to dress or undress without help
  • Unable to  keep ordinarily clean and presentable without help;
  • Need for frequent help adjusting special prosthetic or orthopedic appliances (excluding  adjustment of appliances which normal persons would be unable to adjust without aid);
  • Unable to eat due to loss of coordination of upper extremities or because of extreme weakness;
  • Unable to “attend to the wants of nature”;
  • Physical or mental incapacity requiring  care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to the daily environment.

The amount of this VA aid and attendance benefit is an addition of approximately $704 per month to your disability compensation payments.

Some little known facts about SMC(l):

  • You do NOT need to receive disability compensation at the 100% rate to receive this form of aid and attendance; I have seen Veterans with as low as a 30% rating receive SMC(l).
  • You may qualify for SMC(l) if you can show that you have a medical condition which, through its essential character, actually requires that you remain in bed (voluntary bed-ridden state is not going to be enough here).
  • SMC(l) is a building block not only to higher levels of SMC, but also to higher levels of SMC for aid and attendance. These higher levels have much more stringent requirements, and are discussed in other posts on the blog.
  • SMC(l) is an inferred claim any time that the VA grants a 100% disability rating.  That means that if the VA has previously awarded you a 100% rating and did NOT determine whether you were eligible for SMC(l) – or for that matter SMC(s) – then you may be entitled to significant past-due benefits.

If your time to appeal that VA Ratings Decision has passed, then you may have a fairly powerful CUE claim – Claim to revise a prior VA Ratings Decision based on Clear and Unmistakeable Error.

#3: VA Aid and Attendance Benefits for a Disabled Dependent Spouse.

If you are service connected at 30% or higher, and your spouse is in need of VA aid and attendance benefits for the spouse’s own disability, then you may qualify for an increased amount of compensation.  See 38 C.F.R. § 3.351(a)(2)

The amount of theVA aid and attendance benefits compensation in this category – check the VA Ratings Tables to see the most current rates – increases as your disability rating percent increases.

The criteria for eligibility for this benefit are found at 38 C.F.R. §3.351(c)…notice how the criteria for eligibility for this form of aid and attendance is broader than the prior 2:

  • Spouse is blind (or has corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less)
  • Is a patient in a nursing home because of mental or physical incapacity; OR
  • Shows a factual need for aid and attendance under the criteria set forth above  – the 38 CFR 3.352(a) criteria

#4: VA Aid and Attendance Benefits as an Addition to Dependency and Indemnity Compensation (DIC).

If you are a surviving spouse collecting Dependency and Indemnity Compensation (DIC), and have a demonstrated need for assistance of another person, you may qualify for DIC Aid and Attendance.

The criteria for DIC Aid and Attendance are identical to the criteria for aid and attendance for a living disabled spouse (#3, above), and can be found at 38 C.F.R. §3.351(c).

Additionally, dependent children (or what the VA offensively still refers to as “Helpless Adult Children”…adults with special needs due to a cognitive impairment or other physical/mental disability) may qualify for an increase to their OWN DIC upon showing the need for Aid and Attendance.

Bottom Line, When it Comes to Aid and Attendance…..

Follow these tips when considering applying for Aid and Attendance benefits:

  • Use precise language: the VA may get just as confused as you if you are not specific in the request for the particular type of benefit.
  • Consider consulting with an accredited VA attorney.
  • Ask any attorney or VSO representative or accredited agent this question: “How many types of Aid an Attendance are there?”.  If they cannot identify at least 3 of the 4 above types, then they may not be competent enough to assist you in your VA Claim
  • Lay evidence will really help your cause – particularly lay evidence in applying for Special Monthly Compensation – SMC(l)
  • Medical evidence of the need for aid and attendance is almost always going to be needed by the VA to approve this benefit, although I have seen rare cases where Lay Evidence carried the day.

 

 

 

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