A.T.I.D.E. — Methodology to Assist Veteran in Filing an Appeal

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I receive contacts from veterans around the country frustrated after receiving a VA Rating Decision and simply seeking some guidance on a daily basis.  Commonly, the veteran does not need formal representation, but does need to understand what actions need he/she needs to take to have successful resolution of their claim subject to a Notice of Disagreement.

I took a few moments to analyze what my thought process is when discussing these issues, listed the key words associated with my thought process, and developed an acronym called A.T.I.D.E. (Acquire, Triage, Identify, Develop, and Execute).  I considered adding an S (“sit back and wait”) but I determined that it was unnecessary and flippant.  As an aside, Atide is apparently an opera by Czech Composer, Josef Myslivecek, about the greek myth of Atys, son of Croesus.

The below is how I go about my formal representation of any veteran I represent before the Department of Veterans Affairs.  The same process can be applied for any veteran/claimant who wishes to represent themselves pro se.

(A)cquire - Acquire all documents related to the veterans claim to always include: (1) a copy of the veteran’s administrative file (C-File) through a Freedom of Information Act request before the operative VA Regional Office; (2) obtain a complete copy of the veteran’s Official Military Personnel File (OMPF) through submission of an SF 180 with the National Personnel Records Center; (3) obtain a copy of the veteran’s medical treatment records from the operative VA Medical Center (VAMC) or private physician.  Additionally, I may need to obtain additional information from various federal agencies or persons depending upon the nature of the claim.

(T)riage - After receiving all of the above documents, triage the issues.  This requires a careful and considerate review of all documents located in the veterans’ C-File, to include all adjudicative documents related to old claims, OMPF, post-discharge medical treatment records, and service medical records (SMR).  If there were multiple claims adjudicated over the course of years, I may chart the issues of when the claim filed, when adjudicated in a Rating Decision, and if a claim to reopen was filed.  My principal concern that this point is simply to identify what issues are subject to appeal and if there are multiple claims ongoing to identify where each issue is in the adjudication process.

(I)dentify – After triaging the general nature of the claims, I begin to identify the major issues subject to appeal from the recent rating decision, inferred issues that should have been addressed in the rating decision, issues regarding effective date of award, and any claims that have not been filed by the veteran because he/she is unaware that they may be service connected disabilities.  It is at this point that I may need to research scientific/medical studies if the issue relates to environmental/chemical exposure, review the operative regulatory/statutory provisions for a particular issue, review the Diagnostic Codes in Title 38, Part IV, and identify any issues regarding ancillary benefits, such as Special Monthly Compensation (SMC).

Additionally, I am carefully reviewing the Rating Decision/Statement of Case so I can fully understand the basis for denial by the VA . . . even if I disagree with the decision’s conclusion.

(D)evelop - At this point, I’ve obtained all information at that point available regarding the veteran’s claim, identified the major issues that need to be resolved, and formulated an understanding of why the veteran was previously denied on his/her claim.  The next step is to develop a plan of action.

If it is an issue of service connection, this usually involves identifying the medical professional who may be willing to proffer a medical opinion, and/or lay statements from the veteran or family members who have knowledge of the claimed disability.  If the issue involves the rating percentage for a particular disability, then I’m identifying what actions I need to take to get a proper medical evaluation conducted for that disability.  It is at this point that I’m considering any issues involving individual employability (TDUI).  If the issue involves effective date of award, SMC, and/or dependency claim, then it is normally a purely legal argument that can be resolved through the briefing/legal memorandum process.

(E)xecute:  Once I’ve developed a plan of action on each issue, the next action is to simply execute.  If I’m unable to obtain the necessary evidence identified (this commonly occurs when a treating physician is unwilling or unable to proffer a medical opinion), then I need to adjust fire and development an alternative plan of action.

Once I’ve executed on my plan, my final action is to draft the brief in support of Notice of Disagreement and/or Substantive Appeal to the Board of Veterans’ Appeals.  Medical nexus statements, lay statements, located military records, are provided as exhibits attached to the brief.  While formal briefing is not required before the VA — as someone who clerked at a federal appellate court and handled administrative appellate claims in both the military and federal government — a well-written brief can only help to clarify the issue on appeal and simplify the decision making process for the reviewer.

If you have questions regarding your claim for disability compensation before the VA, please do not hesitate to contact us at www.finkrosner.com or via telephone at (732) 382-6070.

 

Obamacare is Here and We Can Help

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It’s been a rocky start, but the Affordable Care Act (Obamacare) opened up their Health Insurance Marketplace so that people without employer-sponsored health insurance can sign up for insurance coverage starting January 1, 2014.  There are subsidies for people whose household income is between 134 and 400% of poverty, using an income calcuation that is “Modified Adjusted Gross Income” + any non-taxable Social Security or SSD income.  For those households who have income under 133% of the Federal Poverty Level, applications can be made for New Jersey Family Care here.

There are a lot of ins and outs to the Obamacare law.  There is a mandate for people to have health insurance, but if you cannot find insurance that is 9.5% or less of your MAGI + Social Security/SSD, you can ask for a hardship to the mandate.  You may have an adult child or parent who lives with you and is your tax dependent, but if they were no longer your dependant, they could get affordable insurance in the Marketplace or through NJ Family Care.  And if you had higher income in the last tax year but are adjusting to a lower income amount now and for the forseeable future, you need to gather documentation to prove this so that you can get the maximum subsidy that you and your family are entitled to.  Remember, the subsidies are treated like a tax credit if you file taxes.  If you over or under report your income to the Marketplace, eventually, the IRS will want to reconcile that on your taxes.

Whether you are younger, older, single, married, divorced, with children or without, Fink Rosner Ershow-Levenberg is here to help.  Have you been thinking that you need an estate planning “check up” anyway but have been putting it off?  Make an appointment today, and you can get your estate planning done and your Obamacare questions answered at the same time!!

Increasing Complex Claims for VA Disability Compensation

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There has been much debate regarding the rationale behind the increase in the VA backlog. An article from the Federal Times opines that the increase, at least in part, is due to the complicated nature of recent Iraq and Afghanistan Veterans claims. Without commenting on the conclusions of the article regarding the backlog, it does highlight the need for Veterans to be aggressive in advocating their claims and ensuring that their VA claims file is as complete as possible prior to adjudication.

Read more about ensuring a timely VA decision on your Veteran’s disability claim…

Seth Director, Accredited Veterans Attorney

Ask your elder law attorney to review nursing home admissions agreements before you sign

When a person is moving into a nursing home for long-term care, there are many papers that are presented to them by the admissions office. While the resident has many federally-protected rights once they move in, at the time of entry the facility is asking them to sign a Contract which can be enforced in court. You should ask your elder law attorney to review the contract before you sign it, because your attorney works for you.

Nursing homes typically ask the resident or their authorized agent (such as Power of Attorney or Legal Guardian) to  agree that income (such as Social Security or pensions) be made directly payable to the facility. The facility will often file a request with the Social Security Administration to be appointed as Representative Payee so that this direct payment can happen. Your elder law attorney will advise you whether you should agree to any of this.

A disturbing trend is that some facilities are asking applicants to authorize them to debit the resident’s bank account every month.  Those debits can wreak havoc with the accounts and create problematic situations for you. We have also seen nursing homes ask applicants to pre-authorize them to file a Medicaid application for the resident, or ask you to retrieve  prior gifts. Speak with your elder law attorney before agreeing to any of these things.

In some situations, the nursing home business office may introduce you to someone who will prepare and file the Medicaid application for you. Keep in mind that by working with your own elder law attorney instead, you may find out about legal rights that a non-lawyer doesn’t tell you about.

Your lawyer works for you personally, and will advise you about your legal rights. 

Call us to discuss your particular situation, at (732) 382-6070.

 

NJ Medicaid confirms that certain irrevocable immediate annuities are not resources.

When a person applies for Medicaid to pay for long-term care services, his resources must be less than a specific amount, which is generally $2,000 if the gross monthly income is less than $2,130, and $4,000 if the income is higher than that. “Resources” and “income” are treated differently. If the applicant owns an annuity contract, it may be counted as an excess resource depending on its characteristics.

In M.W. v. Division of Medical Assistance and Health Services and Union County Board of Social Services, OAL DKT no. HMA 2998-2013, M.W. had purchased an irrevocable, immediate, single-premium annuity that could not be surrendered for cash value. The County agency treated it as a resource and denied eligibility. On appeal (Fair Hearing), the Administrative Law Judge determined that it could not be counted as a resource because it could not be liquidated under any circumstances. On January 28, 2014, the Director of NJ Medicaid (DMAHS) issued her Final Agency Decision and reversed the County’s decision.

The case was argued and briefed by Linda S. Ershow-Levenberg, and Lauren S. Marinaro Esq. & Beth L. Barnhard Esq. assisted with the brief.

There are many kinds of annuities. Call us to discuss your particular situation at (732) 382-6070.

NJ Medicaid confirms outright transfers to disabled kids cause no Medicaid penalty

Generally speaking, if a Medicaid applicant made gifts of assets during the 5-year look-back preceding her Medicaid application, eligibility will be denied for a period of time called a “transfer penalty.” There is a special exception to this rule for transfers that were made to disabled children.  

In this case , M.C. v. Union County Div. Soc. Serv. And DMAHS, HMA- 8967-2013, the local Medicaid agency imposed a transfer penalty for an outright transfer of assets to a disabled child, despite copious federal and state law to the contrary. On appeal (“fair hearing”), the Administrative Law Judge  recommended that the penalty be reversed, and on March 18, 2014,  the NJ Division of Medical Assistance and Health Services (DMAHS) issued its Final Agency Decision adopting the ALJ decision, eliminating the penalty.

The case was argued and briefed by Linda S. Ershow-Levenberg.

Call us to discuss your particular situation, at (732) 382-6070.

What’s Love Got to Do With It?

I love to see these types of stories of finding love in assisted living or other senior community setting.  Many times, our clients have developed new relationships in nursing homes or assisted living.  They may even want to get married!  It’s so romantic, but as attorneys, we have to look past the romance and see how a new spousal relationship will affect the individuals’ estate plans and eligibility for public benefits.  It might be the best idea ever to get married or the worst–it all depends on the client’s individual situation.  Older and contemplating remarriage?  It’s good idea to talk the idea over with an elder law attorney.  Give us a call!