Effective Date of Entitlement for DIC Benefits . . . Please File Within One Year of Death

On October 20, 2014, the Court of Appeals for Veterans Claims (CAVC) issued a single-judge unpublished memorandum opinion in Heredia v. McDonald.  The opinion is not precedential and presents no point of law that is unresolved, however, it will hopefully give insight in the future for filing a VA survivor benefits claim.  In essence, the surviving spouse, Mrs. Natalia Heredia, of Marine Corporal (deceased) Joseph J. Heredia was appealing the decision regarding the effective date of award for dependency and indemnity (DIC) compensation.  Judge Hagel, a decorated Vietnam veteran, denied an earlier effective date of award.  I don’t want to comment on Judge Hagel’s thought-process, however, sometimes judges need to make difficult decisions between what is legally correct and what is correct from a lay perspective.

Marine Corporal Joseph Heredia was killed in action on November 10, 2004 in the Al Anbar Province, Iraq.  News reports from the LA Times (http://articles.latimes.com/2004/dec/26/local/me-heredia26) and Fallen Heroes Memorial (http://www.fallenheroesmemorial.com/oif/profiles/herediajosephj.html) document the respect and honor by which Cpl. Heredia served.  Mrs. Heredia asserted that the Marine Corps casualty assistance officer did not inform her of VA survivor benefits at the time of death and she did not become aware of DIC benefits until September 2008 upon visiting a local VA Regional Office. The Regional Office granted DIC benefits the same month as application.

In general, the effective date of award for DIC compensation is the date of receipt of claim.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  However, if the claimant files within one year of date of death of the veteran after separation (Section 3.400(c)(2)) or within one year of date of death in service (Section 3.400(c)(1)) then the effective date of award would be the “first day of the month in which the death occurred.”

Judge Hagel found that at no point, prior to September 2008, does the record “reflect that any document was ever sent to or actually received by VA prior to Mrs. Heredia’s application for dependency and indemnity compensation such that VA was aware she was an eligible dependent.”  Judge Hagel therefore held that “the [Board of Veterans' Appeals] denial of an earlier effective date for [DIC] is not clearly erroneous….”

Judge Hagel then commented: “[T]he Court would be remiss if it did not note that Mrs. Heredia’s circumstances, on their face, are unconscionable.  Assuming the accuracy of Mrs. Heredia’s testimony-that she was not informed of her ability to obtain dependency and indemnity compensation benefits until approximately four years after her husband was killed in action-the Court is troubled that in instances when a servicemember’s death occurs in service, there appears to be no efficient and reliable mechanism in place to advicse that servicemember’s family of the benefits available to them at the earliest possible moment.”

If it is any solace to Mrs. Heredia, the adjudication of her DIC claim may — and hopefully will — provide the impetus for the VA and DoD to have a better transition point for family members of servicemembers killed in service.


Appeal of a Medicaid Denial Must be Filed within 20 days of Notice

When an application for Medicaid benefits is filed with a County Board of Social Services in New Jersey, it may be many months before the applicant hears back from the caseworker who is processing the application. If the applicant is in a nursing home or is suffering with Alzheimers Disease or other dementias it is crucial that they have a representative such as a family member, agent under power of attorney, or lawyer, who can keep in touch with the agency, provide an accessible mailing address,  and send the updated financial records while the eligibility determination is in process and the application is pending. Should there come a time that the agency denies eligibility, it is required to serve the applicant with Notice of a Denial of Benefits. Notice is required in order to preserve the applicant’s constitutional Due Process Rights to appeal a deprivation of Medicaid benefits. The first appeal is called a Request for Fair Hearing, which takes place at the NJ Office of Administrative Law before an Administrative Law Judge.

Once the Notice has been served, the applicant has just twenty (20) days to request their Fair Hearing. N.J.A.C. 10:40-3(a). If there are “extraordinary and extenuating circumstances,” the applicant can request an extension. One of those circumstances could be that the applicant simply never received any Notice of the Denial. In a recent unpublished (non-precedential) decision of the NJ Superior Court Appellate Division called Reuter v Burlington County Board of Social Services and DMAHS, docket no. A-0514-13T2, that is what occurred. The applicant filed a late request for hearing on the 147th day and the request for extension was denied. Since the Agency had no proof that it had actually served Notice of Denial, the refusal of an extension was reversed and the case was remanded for further fact-finding.


For representation on Medicaid application denials and fair hearings, call 732-382-6070

Supported Decision-Making as an Alternative to Guardianship

Back on May 29-30 I participated in the 3rd World Congress on Adult Guardianship in Arlington VA and followed up with blog posts about alternative approaches to guardianship around the world. Supported Decision-Making is a concept that is gaining traction in many places and certainly deserves careful consideration here in New Jersey. It’s more complicated than merely entering an adjudication of incapacity and appointing someone as Guardian over another person. An array of agreements and release authorizations is needed, essentially combining HIPPAA releases (for immediate access to health information), perhaps a conservatorship (voluntary arrangement for management of finances with court oversight), a psychiatric advance directive (if that is an area of concern)  and agreements between the young adult and their parent/supportive adult as to how the supportive adult will assist with decision-making and safety.

For parents of young adult children with special needs, pursuing a non-guardianship approach to help their young adult with intellectual disabilities (ID)  navigate their way safely in the world can be a huge task. I just came across a comprehensive article on this subject which was exciting to read, in the Penn State Law Review.4-Kohn et al. (final) (rev2) (1) It explores every aspect of this new concept in great detail.

NJ Medicaid MLTSS Feedback Forums scheduled in October

You know by now that the New Jersey Department of Human Services has been developing a new Medicaid Long Term Services and Supports (MLTSS) program under its 2013 Comprehensive Medicaid Waiver. It’s still a work-in-progress. This program affects all elderly and disabled Medicaid applicants and Medicaid recipients who need  long-term care Medicaid services outside of nursing homes. Three “Feedback Forums” (sometimes these are called “Stakeholders’ Forums) will take place to receive comments from the public.  Stakeholder letter 10.9.14

The dates are October 21 (Central Region), October 24 (Southern Region) and October 31(Northern Region) from 10:00 am to noon. Considering that they will be doing a long presentation with explanations about the program, this is not a lot of time to receive public comments. However, if you wish to submit comments and questions you can do so by contacting the program liaison, CarolAnnConover@dhs.state.nj.us.

A major area of concern is the question of how the State will determine the amount of hours per week of home care a person will qualify for. To be eligible for  MLTSS home services, the Medicaid applicant needs to require the same level of care as a nursing home resident. So maximizing the amount of hours is vital. If you are concerned about this issue or any other related questions about the MLTSS program, you may want to contact the state liaison, send in written comments, or attend the forum.

CAVC Troubled By One ROs Lack of Responsiveness . . . But One RO Has Shed Light Through the Fog of Recent

On October 7, 2014, the Court of Appeals for Veterans Claim (CAVC) published a decision in Roberts v. McDonald (regarding how the offset should occur for surviving spouses both entitled to annuity benefits under the Survival Benefits Plan and VA benefits pursuant to dependency and indemnity compensation (DIC)), and a number of unpublished decisions.  While unpublished decisions have no legal precedential value, I commonly find those decisions provide more insight into the pulse of the CAVC and Department of Veterans Affairs (VA).

A common theme I have seen in relation to decisions from the CAVC under the All Writs Act is agency responsiveness.  In Myers v. McDonald, the CAVC denied Mr. Myers petition for extraordinary relief in the nature of a writ of mandamus.  In essence, Mr. Myers was disputing the Regional Office’s calculation recoupment for military separation pay that occurred in 2006.  Mr. Myers was correct.  After many years of correspondence — and pursuant to a CAVC ordered VA Secretary response — the Regional Office agreed and provided funds for the amount erroneously recouped in 2006 in September 2014.  The CAVC then denied Mr. Myers’ petition because there was no case or controversy for the court to resolve.

As an aside, the CAVC (an Article I court) has adopted the Article III court’s case-or-controversy jurisdictional limitation as a matter of judicial prudence not as an issue of Constitutional imperative. One day shortly, I’ll finish my article on why the CAVC should reconsider its position regarding the case-or-controversy doctrine. . . .

Regardless, in Myers the CAVC felt “compelled to comment on the RO’s troubling practice of not responding to [his] requests for an accounting until he filed his petition with the Court.”  The CAVC further commented, “There is simply no place for such artifice in the veterans benefits system, and no claimant should have to resort to a petition for a writ of mandamus to obtain a simple response to correspondence.  The Court trusts that VA will take this opportunity to reevaluate its practices regarding claimant correspondence and will begin timely responding to such correspondence in the future.”

Myers clearly evidences what is wrong when the VA Regional Office’s don’t respond to claimant inquiries . . . protracted issues and litigation that frustrate the veteran and contribute to an already over-worked Agency.  On a few claims of recent from the Newark VA Regional Office, however, I can offer some insight into how a simple solution has resolved some issues without a letter-writing campaign, Congressional inquires, petitions before the CAVC, etc… The solution was a telephone call response, acknowledging some issues that were pending, what actions the Newark RO was going to take, and — although no information about the outcome — a general reference point for resolution.  This permitted me to alleviate some of my concerns, relay the information to the veteran/claimant, and generally stop my next unnecessary action.

Thank you Newark Regional Office . . . and awaiting some recent return calls from some of the other VA Regional Office’s around the country.