Archive for the ‘VA (Veteran's Affairs)’ Category

Thursday, October 7th, 2010 Laurie Ohall


Legal Issues with Veterans Benefits

Accreditation
Federal law dictates that no one may help a veteran in the preparation, presentation and prosecution of an initial claim for VA benefits unless that person is accredited. The only exception to this law is that any one person can help any veteran — one-time only — with a claim. To help any veteran a second time requires accreditation.

VA recognizes 3 types of individuals for purposes of accreditation.

(1) Accredited attorneys
(2) Accredited agents and
(3) Accredited representatives of service organizations. (Veterans Service Officers)

In order to be accredited to help veterans with new claims, an individual desiring this certification from VA must submit a formal application, must meet certain character requirements and work history requirements and — except for attorneys — must pass a comprehensive test relating to veterans claims and benefits. There are also requirements for ongoing continuing education.

Without accreditation no one may help a veteran with a claim more than one time.

What Does It Mean to Help a Veteran with a Claim?
VA interprets its prohibition on preparing, presenting and prosecuting a claim to mean that talking to a veteran or a veteran’s qualifying spouse or dependent after that person has indicated an intent to file a specific claim for benefits requires accreditation. Anyone can talk about veterans benefits in general with any veteran and need not be accredited. The point at which discussion narrows down to specific information about the veteran’s service record, medical conditions, financial situation including income and assets and other issues relating to a claim specific to a veteran or dependent triggers accreditation. According to VA, discussing the specifics of the claim means that the veteran has expressed an intent to file an application for veterans benefits, and at this point, the consultant helping the veteran must be accredited.

Stated again: An individual cannot advise a veteran or other eligible beneficiary about that person’s specific claim for VA benefits unless that individual is accredited.

It does not matter whether physical help with filing the claim is provided or not. The need for accreditation occurs at a much earlier stage than becoming physically involved in the claim. For a better understanding of how VA General Counsel interprets the need for accreditation please go to the VA Office of General Counsel Website — Frequently Asked Questions about Accreditation at http://www4.va.gov/ogc/accred_faqs.asp

Working under the Umbrella of an Accredited Attorney or Accredited Claims Agent
Many individuals or organizations who are not accredited and who are promoting and helping veterans obtain their benefits are often attempting to work under someone who is accredited. Most of these individuals are doing it wrong and not complying with the law.

These individuals make sure that the application is done by an accredited attorney or an accredited agent. In some cases, non-accredited individuals will refer veteran households to a local veterans service officer (an accredited representative of a service organization).

Unfortunately, most individuals who are not accredited and who are operating with someone who is accredited are still illegal. This is because the non-accredited individuals become involved in the claim by providing advice after an intent to file and in many cases they help gather documents and other pertinent information. As mentioned above, these activities require accreditation. The only way that a non-accredited individual can operate legally to assist someone who is accredited is to immediately refer a veteran or dependent to an accredited person when first understanding an intent to file a claim. No additional help or advice may be given after the intent to file has been recognized.

Many accredited attorneys are also not operating legally. Only an accredited attorney — one-on-one with the client — may be involved with a claim. Anyone else, inside or outside of the office, cannot assist with the claim except under certain limiting conditions. Specifically, in order to work under an attorney, a non-accredited assistant must either be another attorney in the office, a certified paralegal in the attorney’s office or an office law student or an intern. The client must also sign a consent letter allowing this arrangement. This consent must be filed with the original application. No other arrangement is allowed. Please see 38 CFR § 14.629 for an explanation of this requirement.

Charging a Fee for Help with Filing a Claim
Generally, no individual or organization may charge a fee for help with filing an initial application for benefits. There is only one exception to this rule and that is under the third-party exemption in 38 CFR § 14.636 (d). The requirements under this exception are very specific. In our opinion, no one that we know of, who is charging a fee, thinking he or she is operating under this exception, is doing it legally. Here are the ways these people are violating this law. (In most cases those who are operating illegally are engaging in all 4 of these unlawful activities.)

(1) The person paying the fee is not a disinterested third party as required by law.
(2) The person filing the claim is not submitting the fee agreement to VA general counsel as required.
(3) The person filing the claim is not submitting the disclaimer to General Counsel as required.
(4) The fee is contingent upon a percentage of the amount of the approved benefit.

We are seeing various financial arrangements for filing claims that are disguised fees in one way or another. As a general rule, anyone who would directly benefit financially from helping a veteran file a claim — whether a direct fee is charged or not — is in essence charging a fee. We know from numerous discussions with representatives, this is the way VA General Counsel treats these arrangements.

If you are working with someone who is not operating legally as outlined above, you should stop using that person’s services. If you yourself are operating in a manner that is not in accord with the conditions outlined above, you must stop doing that. You’re not legal. Not only could unauthorized individuals get a notice to cease and desist but in some cases there could be fines or legal action involved as well. It’s not worth it. For help with accreditation issues you can contact the National Care Planning Council at info@longtermcarelink.net.

For more information, visit www.ohalllaw.com.

Thursday, July 15th, 2010 Laurie Ohall


Veteran Reading News
Original Article  found at  National Care Planning Council

Written By :  Melissa Howell

12:20 a.m. The clock was blurry as I rubbed the sleep from my eyes to answer the phone.
“Hello”, I said.

A weak and frightened voice on the other end pleaded, “Melissa? Is Bryan there? I can’t get out of my chair. Could you or Bryan come over?”

I sighed as I handed the phone to my husband and heard him say, “I’ll be right over, Dad.”

When Bryan left, I pondered on my father-in-law, John, and his situation. John had just come out of the hospital after a serious illness and although the doctor had assured us he would be fine, we quickly learned that he was not able to care for himself. He lived alone in a small apartment and had in-home health care assistance through his Medicare plan. They came once a day to help him with a shower and to aid him with incontinence. Bryan and I came over three times a day to help him with changing his clothes and to make his meals. In addition, we helped him with his bills and took him to his frequent doctor appointments. Tonight was the first time he had called to ask for help in the middle of the night. We needed to do something different. We were both exhausted between working our jobs and caring for our four young children and constantly running out to take care of John’s needs. It was becoming more than we could handle. We realized we really needed to get him into assisted living.

John lived comfortably on an income consisting of social security and a retirement pension, but as we visited different assisted living homes in our immediate area, we quickly realized that this income was not enough. Assisted living was really expensive!

John had served in the Navy during the Korean conflict and we had heard through a friend that veterans could receive assistance through the Department of Veteran’s affairs for health care. The catch was doing it correctly. Our friend referred us to a Veteran’s Consultant from the National Care Planning Council to provide information for the challenging task of filling out the paperwork to receive this benefit. A Veteran’s Consultant can provide general information on how a claim is filed. Our consultant told us about all of the necessary supporting documents we would need to make sure it was approved.

The paper work was pretty daunting, but we worked through each form thoroughly to be sure that we were providing all the information Veterans Affairs (VA) would need in order to expedite John’s payments.

First, I obtained a medical report from John’s doctor — the most crucial step in the process. This form would prove that John needed aid and attendance. In our case, the doctor described his medical condition and then noted specifically his need for help with incontinence and showers, his lack of motivation to make meals for himself and his inability to leave the house alone. It was, however; important to us that the doctor wrote that John was mentally capable of making his own decisions, because we did not want to go through a delaying process of having VA assign somebody who would need to pay his bills for him (VA calls this person a fiduciary).

Another key thing was that John had to show evidence to VA that his care costs were close to or exceeded his income. Fortunately, John had a small amount of savings and he was able to pay in full for the first month’s payment to his assisted living home. This was important, because the statement showing this payment was important evidence needed to present to VA. Since his assisted living cost exceeded his income by $1,000 per month, we arranged with the director, to pay what John could afford until the benefit from VA came in and then the director agreed to pay the remaining debt balance on the account at that time.

An important form was John’s original DD-214, which was the official record showing that he had been honorably discharged from the military. I quickly found a certificate of honorable discharge (DD-256) but this was not the correct form. We searched through all of his files and boxes and couldn’t find the DD-214. So I got on the Internet and found a website for the National repository where the official forms can be obtained. It appeared that it could take up to 6 weeks to receive an official copy. Fortunately, we found the original document folded in his wallet and we did not have to delay our process.

One of the forms my Consultant made me aware of was a VA power of attorney form (VA form 21-22a) that gave me the authority to fill out and submit the forms to VA on behalf of John. Although John was mentally sound, he was weak and tired and didn’t really want to do anything but watch television and eat. With this form, I was able to communicate with VA in his behalf.

There were several other forms to fill out and after all the paperwork was finished, my Veteran’s consultant gave us the address of where to send all of them. Our particular VA processing office was located in St. Paul, Minnesota.

After about two weeks, John and I each received a letter stating that VA was working on his case and they assigned him a case file number. After another two weeks, we received a letter stating that we needed to fill out some other paper work. I showed these to my consultant, who assured me, in our case, that it was standard procedure and that the paper work I had originally filed was sufficient. Within another two weeks, John received his first payment.

Because his care cost exceeded his income, he was awarded the full $1644.00 per month. VA sent another payment from the date that they had first issued his case number. So in the first month, we received two payments. These were sufficient to catch up the debt he owed to his assisted living and to continue with full payments each month.

Applying for the VA Aid and Attendance Pension was detailed, but it was not terribly frustrating because of the general information on the application process I received from my consultant. It did require extra work on my part, but it was well worth the end result of getting the care that John needed and the relief that Bryan and I needed in the end. I am grateful that we had such a wonderful resource in National Care Planning Council to help us find a capable and informative Veteran’s Consultant.

Bryan and I now see John twice a week and visit with his assisted living staff often to help him have a comfortable and enjoyable life in his new home. He is able to enjoy activities and meals with other people, have quality personal care and have the peace of mind that someone is always there to help him. I now sleep at ease through the night, knowing that his needs are taken care of and that there won’t be any middle of the night calls asking for help.

The National Care Planning Council wishes to thank Melissa for providing her experience. We maintain a list of consultants across the country which can be found at the following address: www.veteranslisting.com. We also provide a book with instructions to help people who want to file an application by themselves. This book can be purchased online at http://www.longtermcarelink.net/a16books.htm.