The aid and attendance qualifications are deceptively simple. During my consultations with clients, I can list and explain the aid and attendance qualifications in a matter of minutes. The families usually understand what makes a good candidate.
But there are two main issues that confuse the aid and attendance qualifications for prospective applicants and families.
Firstly, excluding the service requirement, the remaining three aid and attendance eligibility criteria overlap. The health, income, and net worth requirements all work together. A claimant cannot simply understand each of these requirements as distinct from the other. The overlapping standards help to confuse what makes a good candidate for aid and attendance pension benefits from the VA.
Secondly, understanding the aid and attendance qualifications and reporting your eligibility to the Department of Veterans Affairs are two very different things. My comprehensive guide to the aid and attendance application can assist families trying to complete a claim on their own. However, as I often tell families, the VA likes to see evidence presented in a specific format.
The Four Aid and Attendance Qualifications
Whether you are a married veteran or a surviving spouse, there are four main and aid and attendance qualifications you must be aware of. I want to provide a caveat now, however. If you are a surviving spouse trying to apply for death pension, then there is a fifth requirement. A surviving spouse must meet the marriage requirement to the veteran.
The four requirements to qualify for aid and attendance pension are: service history, health, income, and net worth.
The veteran must have served at least 90 days total of active duty service with at least one of those days occurring during a period of war. Importantly, the veteran did not have to serve in a combat zone or have been injured. Simply service on active duty during a period of war is sufficient. If the veteran did not serve for at least 90 days, he or she must have been discharged or released for a disability determined to be service connected. Service time does not have to have been consecutive. Aggregate active duty service time can also be sufficient.
The VA wants to see an original DD 214 or other discharge paper. If the claimant does not have the original, the VA will also accept a certified copy of the original. Keep in mind, however, that the VA will no longer mail back the original discharge papers to the claimant. I do not recommend sending the VA an original copy of the discharge papers unless it is absolutely necessary.
Aid and attendance is one of three types of pension that the Department of Veterans Affairs offers under the improved pension regulations. The basic pension, which is different than aid and attendance pension, requires permanent and total disability that is non-service connected or that the veteran be at least 65 years old.
However, because we are talking about aid and attendance, which is considered pension with special monthly pension, we really want to know if the claimant is medically eligible. If the claimant is medically eligible as determined by VA Form 21-2680, then he or she will be considered permanently and totally disabled and age will not be a factor.
The 2680 is the key to proving eligibility for special monthly pension – i.e. that the claimant is medically eligible for aid and attendance pension benefits. The claimant’s doctor must report that the veteran or surviving spouse requires assistance with activities such as bathing, dressing, personal hygiene, and medication management. The doctor should also report the claimant’s complete diagnosis. The VA wants to see that the claimant requires assistance with activities of daily living.
Of the four main aid and attendance qualifications, the income requirement is the least understood and causes the most denials. I’ve often spoken with families who simply cannot comprehend how their mother with her $1700 per month social security is considered to have excessive income.
The reason is simple.
The VA compares unreimbursed medical expenses versus gross income to determine income eligibility. If a claimant has no unreimbursed medical expenses, they can be ineligible for aid and attendance pension even if their fixed income is quite low. Therefore, when the VA tells a claimant their income is excessive, it really means that their unreimbursed medical expenses are not large enough.
In order to lower a claimant’s income, the VA must see that the applicant is paying for custodial care. Therefore, the aid and attendance qualification for income should really be viewed as whether or not the claimant is paying for custodial care.
If the claimant is paying for two or more activities of daily living, the VA will consider that assistance as an unreimbursed medical expense. If the claimant must live in a protected environment to protect themselves from hazards and dangers incident to everyday life, the VA will consider that room and board as an unreimbursed medical expense. Reporting this information to the VA can be confusing. You will need to submit different forms depending on where the claimant is living (i.e. assisted living or independent living) and what services they are paying for. Please review my aid and attendance application article for more information.
The VA does not have a bright-line number to determine if a claimant’s assets are excessive. This means that there is no single asset threshold that is “too much” for a claimant to report to the VA. Net worth is a question of fact. The VA reviews monthly shortfall between income and medical expenses, life expectancy, and number of dependents to determine if net worth is excessive.
Unlike Medicaid, the VA currently does not have a “look-back” period. This means that legal and financial planning can be done to qualify over-resourced claimants for aid and attendance pension. It is important to complete planning before the application is submitted to the VA.
If you think you might be over-resourced now or in the future (because you plan to sell your primary residence), you should speak to a qualified elder law attorney about the best way to maximize your chances of receiving and keeping aid and attendance pension.
VA benefits can help families pay for the cost of care for a loved one. Assisted and independent living is expensive. The aid and attendance pension benefit can cover a significant portion of the cost of a facility or the cost of home care. Before submitting an application, make sure you or your loved meet all the aid attendance qualifications.
Please contact VA Legal Team today.