Tag: VADisability

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The HAVEN act and Bankruptcy

Do you ever wonder how bad rumors get started?  Bad headlines don’t help.

Congress is considering a new piece of legislation.  It’s called the HAVEN act.  The act will correct a problem that has existed since the 2005 overhaul of bankruptcy.  

If you are a veteran who receives disability income from the VA, that money is counted in your means test.  In other words, it counts against you in bankruptcy, whereas regular disability income does not. 

Frankly, that’s not fair. 

The HAVEN Act saves the day

That’s where the HAVEN act comes in.  

Chapter 7 bankruptcy is a liquidation bankruptcy (it’s what most people who are in big debt want) and it gets rid of all of your debts that are dischargeable.  The problem is, you have to qualify for a Chapter 7 via the means test.  

This military disability increases your total income, which in turn can cause your income to be so high that you are forced to do a Chapter 13 bankruptcy. 

The HAVEN act eliminates military disability income from the means test just like regular SSI disability and gives you a big boost.  

There is, unfortunately a lot of rumors going around about the current state of bankruptcy and military benefits.  

Misconceptions about the current system

 A reporter for the military times has stated that veterans who file bankruptcy under our current system risk having the benefits taken away.  He states “Bankrupt vets can lose their disability benefits.”

This is patently false.  

The current system allows the military disability benefits to be counted in the means test, but it by no means eliminates your disability benefits.  

All this means is that IF your income is high enough, it could cause you to have to do a Chapter 13 bankruptcy instead of a Chapter 7.  

But, I repeat, you do not LOSE your benefits.  You still get a check from the VA every month just like you always did and will continue to do for the rest of your life.  

If you file a Chapter 7 bankruptcy, the trustee can’t take your check from YOUR bank account. 

Additionally, the Chapter 13 trustee does not take them from you either.  They still go into YOUR bank account and you may have to use some of your disability money to make your Chapter 13 payment.  

While all of this may seem confusing, rest assured, as a bankruptcy lawyer, it’s my job to understand the nuances of the law and make sure you get the best outcome possible.  Trust me, I do and you will. 

If you’re a veteran who is concerned about your VA benefits and the bankruptcy process, call me.  I understand it a lot better than you may think (I actually work with veterans to get VA disability for them as well). 

We’re here to help, especially those who have worked so hard and sacrificed so much already.  

Who is eligible for VA DIC?

DIC

Certain family members are eligible for DIC, or Dependency Indemnity Compensation in the event of the death of a veteran.  In order to qualify for DIC, you have to be verified as a qualified survivor of a disabled veteran.   

Who’s actually eligible for DIC

  • A spouse:

A spouse is entitled to DIC if they were in a valid marriage with the deceased veteran.  Common law marriages generally don’t qualify unless the couple lived in a state where it was recognized.  The couple must also have been “free to marry” at the time of their marriage.  This means that if you were previously married, your previous marriage must have been annulled or ended with divorce or death. The VA will use technicalities like this to deny DIC to spouses.  

Another thing that must be established is that the veteran and their spouse must have been living together for at least one year prior to the veteran’s death if there were no children.  This is moot if there was.  This means that the veteran must not have been separated or estranged from the spouse.  There are obvious exceptions to this rule but the VA will look into all of these factors.  

  • A Dependent or surviving parent

Parents of any kind (natural, adoptive and step) can qualify for DIC if you acted as a parent for at least one year prior to the veteran’s military service.  The parent must have also been financially dependent on the veteran or have an income below a certain threshold to qualify. 

  • Children

Children (biological, adopted or step) of the veteran are also eligible for DIC.  The child mustn’t be married and must be under 18 (or 23 if in school). If you’re over 18 and want to claim DIC you must have been declared permanently unable to support yourself prior to your 18th birthday.  Grandchildren are also not eligible unless the veteran had legally adopted them.   

Generally speaking other family members are ineligible for DIC.  If you’re applying for DIC you’ll want to send in the documents that prove you’re eligible such as marriage certificates, birth certificates or proof that a child is in school.  

The process can be confusing and we’re here to help. If you’ve been denied DIC, give us a call to see how we can help. 

Dependency and Indemnity Compensation

Dependency and

Our veterans deserve the best.  They’ve served honorably and given much of themselves.  This is especially true of deceased veterans.  If a veteran’s death was related to their service, those who survive the veteran may be eligible for Dependency and Indemnity Compensation from the VA.     

Dependency and Indemnity Compensation or DIC is for the survivors of veterans who died on or after January 1, 1957 and a program called death compensation is for survivors of veterans who died prior to that date.  

Because most people are looking for DIC benefits that’s where my focus will be in this post.  

The Circumstances around DIC

The VA will treat some claims as service connected and automatically grant DIC.  Those claims must fall under the “ten year rule.” That rule states that if a veteran was injured to the point that they were considered totally disabled for at least ten years, the survivor’s benefits will be granted and the death will be considered service related.         

For the “five year rule” to kick in the veteran must have been totally disabled for at least 5 years from the veteran’s release from active duty or discharge.  

The “one year rule” applies when the veteran was a POW and the disability was rated continuously as totally disabling for at least one year prior to death.  

Application

In order to apply for DIC, a survivor must submit a VA form.  This form is 21P-534 if you’re a spouse or child and 21P-535 if you’re a parent.  All these VA forms are online and can easily be found by clicking on the links above or by doing a quick search. 

If you inadvertently use the wrong form, that’s ok.  The VA must interpret any application, whether through the VA or SSI as an application for DIC. 

There is no deadline to apply but the timing of the application can have significant impacts on how much you get paid and when.

If you file the application within the year of the veteran’s passing, the VA will pay the benefits back to the first day of the month after the death of the veteran.  If the application is submitted more than one year after the death of the veteran, the DIC payment will be backdated to the 1st day of the month in which the application was received.  

Other circumstances

If the rules I describe above don’t apply, we have to prove that one or more of the service related conditions the veteran was being compensated for contributed to his or her death.  Obviously, we need to look first at the death certificate. 

If the cause of death is related to a service connected ailment, the VA will likely grant benefits without a lot of problems.  

If the related condition is not the cause of death, then you have to look outside the box.  

There’s been litigation that has given Dependency and Indemnity Compensation to survivors when the veterans service related ailments exacerbated non service related ailments. 

In order to establish this, you have to talk to doctors, family members and others who were around the veteran in order to provide proof to the VA that the two were correlated. 

Finally, in order to actually take advantage of these programs, you have to be eligible.  This is more complicated than one would like to believe.  I’ll cover this in another blog in the future.

In the meantime, if you or any other veteran needs me, I’m always just a phone call away.                     

     

Why do I need a Veterans Disability Lawyer?

 

Veterans served our country in ways that many civilians can never understand or truly appreciate.  While in the service of our country, many veterans suffer unimaginable trauma, both physical and mental. Our country has always tried to support our veterans as they return from overseas and try to assimilate back into civilian life, but for many, that transition is hard and often fraught with mental and physical health challenges.

Veteran’s Disability Law is an extremely complex area of law. Prior to 2006, veterans were not allowed to hire VA disability lawyers to represent them in the Regional Office and the BVA. This law was changed in 2006 when Congress finally recognized that veterans should have the right to hire VA claim lawyers in this very important area of law. In veteran’s disability claims, a VA disability lawyer can help clarify the issues and ensure that the claim is properly supported by evidence so that the claim can be appealed, if necessary.

Because of the complex nature of the law and the VA’s propensity to deny claims to deserving veterans and their dependents, it’s necessary to have people on your side, focused solely on your case and what you need in order to be made as whole as possible.

That’s where we step in.  We strive to make sure that our veterans get the care they need and deserve.  We love veterans and we our proud of the veterans in our own families who have served in every major war the United States has fought in the last 100 years. We decided to pursue VA Disability law because we saw the struggles many of our family members and friends faced as they returned home from the service. While many of them never received the care they needed, we don’t want you to suffer the same fate.

Call the attorneys at Harmon and Gorove today to learn how we can help you get the help you deserve.