An Attorney’s Guide to Veterans’ Rights and Benefits
Sean
Erenstoft is a civil rights lawyer
who has formed LA-VETS.com
for the purpose of providing an accessible outlet by which military veterans
can find and apply for their much-earned benefits. Sean
has also crafted the site to include links to the JOBS4VETS program he
initiated. The following article was
written by Leslie C. Rogall and is re-published for the purpose of educating
other lawyers and advocates about the rights of veterans with an eye toward
convincing people such as Sean to help advocate for the men and women who have
fought for our freedoms around the world.
With
nearly 25 million veterans now in the United States, it is likely that
attorneys will frequently provide them legal services. Veterans have unique
entitlements to monetary and program benefits that can extend to their parents,
spouses, and children. In order to effectively counsel these veterans and their
family members, lawyers must be able to identify potential veterans’ issues and
be knowledgeable about laws and regulations that govern this area of law.
Although
veterans’ law is a specialized practice area, it has many connections to other
areas of law. For example, if an attorney is conducting a real estate
transaction with a veteran, it is helpful to be familiar with the provisions of
the home loan guaranty program of the Department of Veterans Affairs (VA).
Similarly, it could be crucial for an attorney handling a veteran’s employment
matter to understand the system for awarding preferences to veterans seeking
federal, state, and local employment. An attorney handling a bankruptcy case
for a veteran should be knowledgeable about whether the veteran’s retirement
and VA compensation are subject to federal and state taxation.
This
article is intended to serve as a brief introduction. The VA provides an array
of programs that are not covered in this article, and only the most common
benefit programs and scenarios are referenced here. All VA compensation figures
provided in this article are given at the 2004 rates; the VA had not yet
published its 2005 compensation rates at the time this issue went to press.
The
Road from Servicemember to Veteran
Many
servicemembers leave the military service after fulfilling a contractual
service obligation or reaching a longevity service retirement. A minority of
soldiers is administratively discharged prior to the conclusion of their
obligation for a variety of reasons. Servicemembers who are injured or become
seriously ill and are no longer fit for duty are usually granted either a
medical discharge or medical retirement.
A
servicemember is ordinarily eligible for retirement after 20 years of honorable
military service. Upon retirement from active duty, the servicemember receives
retirement pay, which is based on rank, length of service, and historical base
pay rates. Length of service retirement is subject to federal taxation, but
some states do not tax military retirement. Military retirement paid for
disabilities incurred in combat, field training, or other hazardous activities,
which will be indicated on discharge orders, is not subject to federal
taxation; however, individual states may still consider this to be taxable
income. A retired servicemember and his or her family remain eligible for the
military’s health insurance and can use military commissaries, post exchanges,
golf courses, and other facilities on stateside military installations.
A
servicemember who becomes injured or seriously ill during his or her military
service to a degree that renders him or her no longer fit for duty will be
referred for a disability evaluation. If the servicemember is 30 percent or
more disabled, he or she is given a temporary or permanent retirement, based on
the stability of the injury or illness. If the servicemember is placed on
temporary retirement, the servicemember receives no less than half of his or
her retired base pay and will be periodically reevaluated within five years for
a permanent determination of status as fit for duty, unfit for duty with
severance pay, or medical retirement. A determination of “medically unfit for
duty” with a disability rating of less than 30 percent results in a lump-sum
severance payment based on years in service and pay grade. Servicemembers who
undergo medical disability evaluation are provided counsel if they opt for a
formal hearing, either to contest the decision that they are unfit for duty, or
to disagree with the disability rating. A servicemember is permitted to retain
private counsel at his or her own expense for the formal hearing.
Veteran
Status
A
veteran is someone who served on active duty in the military, naval, or air service
and who was discharged or released from the service under conditions other than
dishonorable. Reservists or Guardsmen who had been mobilized or called up for
active duty are considered veterans. Different VA programs have varying
requirements for length of active military service or give priority to disabled
veterans. For all VA programs, length-of-service requirements are waived for
servicemembers discharged for disabilities incurred in military service.
When
they separate from active duty, servicemembers receive a Department of Defense
(DD) Form 214, the universally accepted proof of veteran status. This document
contains important information such as a veteran’s dates of service, awards,
training, rank, combat experience, characterization of discharge, and a
notation if the discharge was for disability, if applicable.
Many
attorneys and military personnel offices formerly advised clients to file a
copy of their DD Form 214 with their local courthouse in order to safeguard
this valuable document. Unfortunately, some servicemembers are still being
advised to publicly file this document, even though the sensitive information
in this document could make them victims of identity theft. Strongly advise
your clients not to follow this outdated practice. In addition, ask your older
clients whether they filed a copy of their DD Form 214; if they did, request
that they remove it from public records.
Disabled
Veteran Status
Certain
programs administered by the VA and the federal government are available only
to veterans who incurred illness or injury in the line of duty. In 2003, the VA
provided disability, pension, and death benefits to 3.4 million veterans.
Although final figures are not yet available, it is estimated that
approximately 2.8 million veterans received VA compensation for
service-connected disabilities or a disability pension in 2004.
In
order to be eligible for these VA programs, a veteran must first file a claim
with the VA. A veteran can file a claim himself or herself. Veterans seeking
assistance with their claims can use the free services of one of the 46
congressionally chartered veterans service organizations. These organizations
often have offices within the VA’s regional offices. The VA adjudication system
is intended to be nonadversarial; therefore, veterans are not allowed to hire
attorneys at the early stages of their claims. However, a private attorney is
permitted to advise or represent a client on a pro bono basis regarding the
breadth of VA programs and the client’s entitlement to specific VA benefits. An
attorney cannot accept compensation for representing a client on such a matter
until after the Board of Veterans’ Appeals has rendered a final
decision.
Disability
Ratings
The
VA uses the Schedule for Rating Disabilities in order to adjudicate veterans’
service-connected disabilities. This schedule lists disabling conditions in 10
percent increments of severity ranging from 0 percent to 100 percent.
Disabilities not listed in the schedule are rated by analogy. VA compensation
is not subject to state or federal taxation. Veterans with a rating of 30
percent or more receive additional compensation for each additional dependent.
Because veterans cannot receive both full VA compensation and military
retirement, retired veterans will have the amount of their VA compensation
offset from their taxable retirement income. A new law initiated the phase-in
of “concurrent receipt” of both VA disability compensation and military
retirement, which allowed some retirees with 20 years or more of service to
begin to collect both military retirement and a portion of VA compensation. In
addition, brand-new legislation eliminated the phase-in of “concurrent receipt”
for 100 percent service-connected disabled military retirees with 20 or more
years of service.
Employment
Rights
Many
veterans are eligible for preference in federal employment. State and local
agencies often extend this preference, as well.
Five-point
preference.
Five-point preference is particularly useful for veterans seeking employment
with the federal government. Veterans’ hiring preference is also given in
downsizing, otherwise known as “reductions in force.” This preference applies
particularly to veterans who served in a war declared by Congress or in a
campaign or expedition for which a campaign medal has been authorized. In
addition, any veteran who served on active duty (not for training) during the
following periods is entitled to this preference: April 28, 1952, to July 1,
1955; August 2, 1990, to January 2, 1992; and for more than 180 consecutive
days, any part of which occurred after January 31, 1955, and before October 25,
1976. Officers retired at or above the rank of major or lieutenant commander
are not eligible for this preference.
Ten-point
preference.
Service-connected disabled veterans are eligible for a ten-point civil service
preference. Disabled veterans included in this group are permanently medically
retired veterans; Purple Heart medal recipients, regardless if they have
received a VA disability rating; anyone with a VA-rated service-connected
disability, even rated at 0 percent; and the mothers and spouses of deceased
veterans and totally and permanently disabled veterans. In addition, a 30
percent or more disabled veteran is eligible for a temporary noncompetitive
appointment in federal positions that can be converted to a career position.
Attorneys should remember that disabled veterans are entitled to the
protections granted by the Americans with Disabilities Act.
Vocational
rehabilitation. To be
eligible for vocational retraining, a veteran must have at least a 20 percent
service-connected disability or a 10 percent service-connected disability with
a serious employment handicap. The VA will evaluate eligible veterans to
determine suitable vocational rehabilitation services and a living allowance.
The VA will also provide the expenses for higher education, technical school, a
certificate program, or technical programs to assist the transition of a
veteran into the workforce.
Dependency
and Indemnity Compensation
Dependency
and Indemnity Compensation (DIC) payments are made to unremarried surviving
spouses of veterans, single minor children, and students who are college-age
children of veterans who died while on active duty or from a service-connected
disease or injury.DIC payments, at the current rate of $967 per month, are also
made to survivors of veterans who were totally disabled by service-connected
conditions at the time of their death, in certain circumstances. Payments can
be made in these instances if the veteran was totally disabled for ten years
preceding his or her death, if he or she had the rating for five years
following discharge from the military service, or if the veteran was a former
prisoner of war who died after September 30, 1999, and was continuously rated
as totally disabled for a year prior to death.
Health
Care
Veterans
are eligible for health care at VA health facilities. There are eight priority
groups established largely based on the service-connected disability rating. A
veteran’s priority group is determinative in whether he or she is responsible
for co-payments for outpatient and inpatient care and prescription medication.
Regardless of priority group, veterans are provided no-cost treatment for their
service-connected disabilities. Veterans who are service-connected disabled at
50 percent or greater are entitled to medical services for the treatment of any
disability, including disabilities that are not service connected.
Attorneys
should be aware that eligibility for VA health care is an important option when
planning with clients. For example, veterans who are 70 percent or more
disabled or otherwise unable to care for themselves because of
service-connected disabilities may be entitled to admission to a VA nursing
facility. This is a valuable option when conducting estate planning with the
family of a veteran who does not meet Medicaid guidelines for acceptance into a
nursing facility.
Home
Loans
The
VA offers veterans home loans that require no down payment. A veteran must
obtain a certificate of eligibility from the VA and get approval for a specific
loan limit. There are varying time-in-service requirements, depending on the
era of service and whether the veteran served as an officer or enlisted
servicemember. Veterans of the Persian Gulf War era, which began August 2,
1990, and is ongoing, are eligible for VA home loans if they completed 24
months of active duty, or the full period of active duty (at least 90 days of a
reserve call-up), or were granted a hardship or early discharge. A reservist
who has not been called up for active duty is eligible for a VA home loan after
six years of selected reserve service.
The
VA limits the amount of closing costs and origination fees lenders can charge,
as well as the appraisal fees. The VA does not require private mortgage
insurance and prohibits lenders from requiring it. The VA assesses a funding
fee, which ranges from 0.5 percent to 3.30 percent of the loan amount,
depending on the type of VA loan and whether it is a first or second VA loan.
This fee is waived if the veteran has a compensable service-connected
disability. The current loan ceiling, with the VA’s guaranty of $60,000, is
$240,000. Recently, numerous members of Congress have offered legislation to
increase the VA home loan ceiling to above $300,000.
Insurance
While
servicemembers and Reservists are still in the military service, they can
enroll in Servicemembers’ Group Life Insurance (SGLI), a low-cost term life
insurance program that provides coverage up to $250,000. The premiums are static
and are not contingent on age.
Following
separation from the military service, each veteran who was discharged under
conditions other than dishonorable is given the opportunity to convert his or
her SGLI into a Veterans’ Group Life Insurance (VGLI) term life insurance
policy. If a newly discharged veteran enrolls immediately after his or her
discharge, he or she will automatically be granted approval for a VGLI policy;
current health status, history of past illness, smoking, and service-connected
disabilities will not be factored into policy rates. The VGLI premiums are
higher than those of SGLI and are age-contingent; however, this policy provides
payment for death incurred in acts of war, terrorism, and ultra-hazardous
activities, which is of interest to some veterans who engage in high-risk
employment or recreational activities. Although the rates are less competitive
than those offered by many private insurers, the program allows some disabled
veterans the opportunity to acquire life insurance when they otherwise might
not be able to do so.
Service-disabled
veterans who are rated for a disability also have the opportunity to purchase
basic Service-Disabled Veterans Insurance (S-DVI). Within two years of
receiving service connection for a disability, these veterans can purchase up
to $10,000 in coverage. A policyholder who becomes totally disabled can apply
for a waiver of premiums on his or her basic S-DVI policy and request a $20,000
supplemental S-DVI policy.
Education
The
VA administers several education programs for veterans and their dependents,
aside from its vocational rehabilitation programs. Veterans separating from
active duty have ten years from their release date from active duty to use
their educational benefits. Reservists generally have ten years to use the
programs from their last date in the Selected Reserve. Veterans can extend
these time limits in some circumstances, such as when service-connected
disability precludes the use of educational benefits.
In
limited circumstances, servicemembers are permitted to transfer their education
benefits to one or more dependents. Such servicemembers must work in critical
career specialties and will incur additional service obligations in exchange
for the ability to transfer these benefits.
The
Montgomery GI Bill is available to veterans who entered active duty after June
30, 1985, and contributed $100 per month for 12 months. Unlike other
VA-administered programs, veterans must have received an “honorable” discharge
to receive this educational benefit; discharge characterizations such as
“general” and “under honorable conditions” render a veteran ineligible for this
program. Individuals with service obligations greater than two years currently
receive $985 per month for full-time studies and $492.50 per month for
half-time studies. This program is not available to veterans commissioned
through the service academies, and there are limitations for veterans
commissioned through the Reserve Officers Training Corps.
The
Veterans Educational Assistance Program is available for veterans who entered
active duty after December 31, 1976, but before July 1, 1985. Veterans who
participated in this program made contributions up to $2,700 while in service.
The VA will match these contributions on a $2 to $1 basis. Unused contributions
are refunded to the veteran. The veteran must have received a discharge for
conditions other than dishonorable.
The
Dependents’ Educational Assistance Program is offered to the spouses and
children between ages 18 and 26 of totally and permanently disabled, deceased,
or missing veterans. Spouses have time limitations in which to use their
benefits. Beneficiaries may receive up to $788 per month in educational
benefits.
Disability
Pension
A
disability pension is available for veterans who meet income requirements and
are no longer able to work because of a permanent and total disability that is
not service-connected. Qualifying veterans must have served for at least 90
days on active duty, with at least one day being during wartime. This pension
is distinguished from the VA’s “total disability rating based on individual
unemployability” (TDIU) compensation, which is an unemployability payment based
on service-connected disabilities.
Death
and Burial Benefits
If
a veteran dies of a service-connected condition, a $2,000 allowance is payable
to his or her survivors. Otherwise, a $300 burial and funeral expense and $300
funeral plot allowance are available.
Veterans
also are entitled to burial in a VA national cemetery. Only veterans who die
while on active duty or are retired from a military service are entitled to
in-ground internment at Arlington National Cemetery, although there are
columbarium spaces available for honorably discharged veterans. Veterans are
entitled to a headstone or marker free of charge from the VA, even if they are
not buried in a national cemetery. In addition, federal law requires, at a
family’s request, that a deceased veteran be afforded appropriate military
funeral honors, which include the folding and presentation of the U.S. burial
flag and the playing of “Taps.”
Correction
of Military Records
Attorneys
may represent veterans before the military services’ boards for correcting
perceived injustices in their military records. A veteran challenging the
characterization of his or her discharge should appeal to the corresponding
service’s Discharge Review Board (DRB) if he or she raises the appeal within 15
years of discharge. Such boards do not have the authority to adjudicate
decisions of general courts martial or medical discharges. However, DRBs can
amend other discharges. A veteran should appeal to his or her service’s Board
for Correction of Military Records (BCMR) within three years of discovery of an
error, unless it is in the interest of justice to go forward with the appeal
beyond three years. The service’s BCMR is effectively an appeal to the
service’s secretary, and the BCMR has the authority to “correct an error or
remove an injustice,” including upgrading a discharge adjudicated by a
court-martial. There is no provision, should the veteran’s appeal prevail, for
the payment of attorney fees and expenses to the prevailing party.
Appeals
Veterans
have the right to appeal the denial of benefits. Following a decision regarding
a disability rating, compensation amount, education benefit, or other VA
benefit program, a veteran has one year from the date of that decision to file
a notice of disagreement to the VA regional office, or medical center, in some
instances, that issued the decision. The issuing VA office, following receipt
of the veteran’s notice of disagreement, will send the veteran a statement of
the case, which contains pertinent facts, laws, and regulations used by the VA
to adjudicate the case. In order to perfect the appeal, the veteran must submit
a substantive appeal within 60 days of the mailing of the statement of the
case, or within a year of the claim, whichever date is later.
The
claim is then adjudicated by the Board of Veterans’ Appeals in Washington, D.C.
The veteran can also request a local hearing by a traveling board of that body
at his or her local regional office or can have a hearing via videoconference.
The Board of Veterans’ Appeals is the final agency appellate review for
veterans’ claims.
Veterans
can appeal decisions to the U.S. Court of Appeals for Veterans Claims, an
Article I court established in 1989. Veterans have 120 days to appeal decisions
of the Board of Veterans’ Appeals. At this point, veterans can retain private
attorneys to represent them in their claims for benefits and compensation.
Captain
Leslie C. Rogall (Ret.) served in the U.S. Army Judge Advocate General’s Corps
prior to her medical retirement owing to injuries sustained in a training
accident. She is an appellate attorney for the Disabled American Veterans in
Washington, D.C. She can be reached at
leslie.rogall@us.army.mil.