Military Veterans' Lawyer Blog

You do -- if you have children. Who will take care of them if you and your spouse pass?

You do --- if you own the following assets you need a will in order that the assets may pass to those you wish to inherit your property:
• Real Property, including mineral interest and surface rights
• Bank or brokerage accounts, CDs, stocks and bonds
• Automobiles
• Tangible Personal Property
• Money Is Owed to You (you are the person writing the will)
• Intellectual property which generates royalties

If you do not have a will at the time of your death the State will determine how and where your estate assets are to be divided.

In a community property state, such as Texas, you cannot dispose of your spouse's half of any community property.

You may ask yourself -- why should you create a will? This is your Last Will and Testament. You are stating to whom, how much, and what assets are to be distributed upon your death.

If you die without a will the State and the courts will determine how your assets are to be distributed. You can make it easier on your heirs by designating who is to receive from your estate.

As I have dealt with probate issues, money and wealth can bring out the worst in people. Using the Christmas classic, Charles Dickens --- A Christmas Carol, as an example Mr. Scrooge’s possessions were taken and sold by various people. Ebenezer Scrooge was not at all pleased on how his assets were distributed.

Although the State provides laws for those who die without a will (intestate) the best way to provide for your heirs is to have a Last Will and Testament to be complied.

Make sure that you have a will.

Many veterans are exposed to noise during their military service. And by noise I mean everything from explosions, gunfire, jet engines, machinery, or other events that produce loud sounds.

Tinnitus is commonly referred to as "ringing in ears," but may sound to the veteran like popping, old test tube equipment, electrical sounds, clicking, or another noise in the ears or head of the veteran.

The VA provides a 10% disability rating for veterans having this disability as long as the tinnitus is recurrent. The maximum amount is 10%, regardless of if the tinnitus is in one or both ears, or the head.

If the veteran is granted 10%, that is the maximum allowable for this disability. However, tinnitus may be combined with another disability such as hearing loss, unless the tinnitus supports the other disability.

No!

Texas Property Code §92.108 states “a tenant may not withhold payment of any portion of the last month's rent on grounds that the security deposit is security for unpaid rent.”

The penalties are clear -- the tenant can be liable up to 3 times the rent wrongfully withheld and liable for payment of the landlord’s attorney fees for any suit to recover the rent.

Therefore if you are a tenant seeking the return of your security deposit after you move out. As a minimum do the following: provide 30 days notice, a forwarding address, make sure the rental property is clean and undamaged, do not break your lease, and pay your last month's rent on time.

Texas Veteran’s seeking help buying and owning a home, just received a little extra help on February 9, 2010. Under this new program called the Texas Veteran’s Mortgage Credit Program, a veteran may apply and receive up to $2000 on the mortgage interest paid to own a home in the State of Texas.

For complete details please visit the website listed below or read the material copied from the site in the continued reading section.

From http://www.tdhca.state.tx.us/homeownership/fthb/mort_cred_certificate.htm#veteranmcc

Continue reading "Texas Veteran’s – Texas Veteran’s Mortgage Credit Program" »

If you or a deceased family member was prevented from separating or retiring between September 11, 2001, and September 30, 2009, because of Stop-Loss, you may be entitled to $500 for each month you were stop-lossed (retained).

YOU MUST APPLY with your respective service no later than October 30, 2010, and apply using the following sites or e-mail addresses:

Stop Loss contact information:

Air Force: http://www.afpc.randolph.af.mil/stoploss/

Army: https://www.stoplosspay.army.mil
or email: RetroStopLossPay@CONUS.Army.Mil

Marine Corps: https://www.manpower.usmc.mil/stoploss
or e-mail: stoploss@usmc.mil

Navy: E-mail : NXAG_N132C@navy.mil

There are requirements you must comply with, but the program is geared to assist you. For instance the Air Force requires a simple 2-page document be completed and attachment of your DD-214 and proof of Stop-Loss. The DoD, however, is allowing statements to be made by the veteran's chain of command to prove the veteran was retained.

For additional information please read Military.com, which cited the American Forces Press Service article by SFC Michael J. Carden at:
http://www.military.com/news/article/army-news/troops-to-be-compesated-for-stop-loss.html?wh=benefits

or the Army's release of the article by SFC Michael J. Carden at:

http://www.army.mil/-news/2009/10/22/29120-defense-department-to-begin-compensation-of-stop-loss-troops/

The Congressional Budget Office posted the changes for TRICARE as proposed by Congress in the Health Care plan of 2009-10.

At the same time politicians scream the country needs Health Care, the same politicians are silently taking away health care benefits earned by retired military men and women.

Men and women who accepted the call to defend this country, often at much lower wages than they could earn in the civilian world, because they made choices. These choices involved love for their country and other intangible and tangible issues including being told Health care was a benefit they would earn and have if they served 20 years and retired honorably. These brave men and women earned their Health Care. So why is Congress taking from the veteran?

Congressional staffers for years have looked at the veteran's TRICARE and other related health care programs as a hemorrhaging budget item. Their solution, have the veteran pay MORE.

The rationale of the Congressional or DoD staffer is simple, they mistakenly claim civilians pay more. I argue the military member has paid much more than the civilian. Some veterans will never recover from their wounds. Other veterans chose to stay in the military under the belief Health Care was a benefit they would be provided while on active duty and after retiring.

Veterans paid by serving their country for 20 or more years. That was the contract between the United States and the military member / veteran. Serve your country honorably, retire, and receive Health Care as a partial compensation for accepting the duty and lower earnings over 20+ years.

While Congress screams to force business to pay for Health Care for their employees. Congress does not feel the same about their employees, military men & women. Veterans need to write their Congressional Representatives.

To read a synopsis of the Health Care which was proposed and how it affects TRICARE users read below.

Continue reading "Health Care Changes for Retired and Tricare Eligible Veterans?" »

B cell leukemias, Parkinson's disease, and ischemic heart disease are now presumptive diseases / illnesses for veterans exposed to Agent Orange.

On October 13, 2009, the Department of Veterans Affairs in a news release announced the VA is extending VA benefits to Vietnam veterans who were exposed to the herbicide Agent Orange.

The October 13, 2009, VA news release states an “estimated 2.6 million” veterans were exposed to the herbicide commonly referred to as Agent Orange. Secretary Shinseki declared “Veterans who endure health problems deserve timely decisions based on solid evidence.” An independent study concluded these illnesses/diseases are directly related to Agent Orange exposure.

The significance of the VA including these 3 new illnesses as presumptive disabilities resulting from Agent Orange exposure, the veteran does not have to prove a connection between their military service and the resulting disease. The veteran, however, must have been exposed to Agent Orange. Therefore, a veteran who is exposed to Agent Orange, as proven by being in the Army and in country (in Vietnam), the veteran has been exposed to AO. Inclusion of the presumptive disease / illness means the veteran is presumed to have a service-connected disability if he has one of the presumptive diseases.

Service and exposure coupled with a current disability is now a service-connected disability.

The full list of presumptive diseases / illnesses associated with Agent Orange includes:
1. B cell leukemias;
2. Parkinson's disease;
3. ischemic heart disease;
4. Acute and Subacute Transient Peripheral Neuropathy;
5. AL Amyloidosis;
6. Chloracne;
7. Chronic Lymphocytic Leukemia;
8. Diabetes Mellitus (Type 2);
9. Hodgkin’s Disease;
10. Multiple Myeloma
11. Non-Hodgkin’s Lymphoma
12. Porphyria Cutanea Tarda
13. Prostate Cancer
14. Respiratory Cancers, and
15. Soft Tissue Sarcoma (other than Osteosarcoma, Chondrosarcoma, Kaposi’s sarcoma, or Mesothelioma)

The effective date is the original claim date the veteran filed the Claim for VA Benefits for one of these new presumptive diseases / illnesses. If you were previously denied VA benefits claim for a B cell leukemia, Parkinson's disease, or ischemic heart disease you have a current claim.

The.mighty.B 52

Suicide is not the answer, according to this clip. Unfortunately, many wounded and disabled veterans carry the burden of depression, loneliness, fear of the unknown future, and just want to give up. I understand all too well.

For the disabled veteran their world has turned upside down. They were active, strong, and had the future. Depending on the injury, event or disease that changed the veteran's life, the hope may be gone.

For me I sought counseling on how to deal with my loss and also how to deal with how people treated me now. I just recently went through a devastating loss when a fiancé left when she saw my vision during a low vision eye exam. I turned to counseling to find hope.

Continue reading "VA PSA by Gary Sinise" »

In order to help you understand why you need to file your application for benefits, pension, or DIC the following information is provided from 38 U.S.C. §5110:

Effective Date --- usually this is the date that the application for benefits is received by the VA. There are exceptions, however, to this rule which is found in 38 U.S.C.S. §5110 and 38 C.F.R. §3.400.

Disability compensation effective dates --- "shall be the day following the date of the veteran's discharge or release if application therefor is received within one year from such dates of discharge or release." This is why you need to file your application without delay.

Disability pension --- "shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran."

Section 1151 disability compensation --- "shall be the date of such injury or aggravation was suffered if an application therefor is received within one year from such date."

Death compensation, dependency and indemnity compensation (DIC), or death pension --- the first day of the month in which the death occurred, as long as application is received within one year from the date of death.

DIC for a child 18 years or older --- factors into the compensation for a surviving spouse based upon the child's 18th birthday if application is received within one year from that birth date.

There is no real reason to delay your application. I encourage active duty members to file your application within one year of separation or retirement. If you are already separated or retired you should file your application for VA benefits immediately file if you have a disability in order to establish the earliest effective date possible.

Memorial Day brings back a lot of memories to me of serving overseas and in a combat zone. Friday meant just two more workdays until Monday. For me, as an aircraft commander or Mission Director, even time in the tent meant I was thinking about the upcoming operations or missions ahead. I was constantly thinking and preparing to achieve the mission objectives.

The objective of VA benefits is to help you to compensate for any service-connected disabilities that limit your earnings.

I can state you need to take charge of helping yourself receive your disability payments or Vocational Rehabilitation to achieve your post-military objectives. You need to act to receive VA service-connected disability payments or help.

For a VA benefit that you earned to be awarded to you, the VA first has to know about you. You must apply for VA benefits through a "526" at your VA regional office. Each day you prolong is a day the VA does not know you have a disability. This is a day you will never be paid for your service-connected disability.

My advice to you is immediately upon separation or retirement, apply for your VA benefits. Do not wait. The date you apply, establishes your “effective date.” Think of this date as analogous to your enlistment date, this is the date that the Department of Veterans Affairs will use to calculate the monies owed to you once your Disability rating is established.

I understand, you may want nothing to do with the military or VA, but the VA folks are not mind readers, they cannot know you have a claim until you file. The law prevents them from granting you an effective date, you thought about filing --- you must apply for your benefits.

Next, within the FIRST year of separation or retirement any disabilities noted and claimed to the VA are considered to be within the presumptive period indicating this is a service-connected disability. Again ANOTHER REASON TO FILE SOON.

As our previous blogs have pointed out you need 3 things to receive a service-connected disability, the first of which is a disability in service, followed by a current disability, and finally a connection or nexus between these 2 disabilities.

Trying to "tough it out" and not let the VA know until 20 or 30 years later allows the VA to search for other alternatives to your disability. You may very well have a current disability, but the VA may use an intervening event (your involvement in a car crash) as the actual cause of the disability. Therefore there is not a connection between your in-service disability and the present disability. Plus, you lose all those years where you could be paid for your service-connected disability.

That is why timely filing establishes the fact that you have an in-service disability. Therefore, just as you were vigilant while in service to accomplish the unit’s mission, you need to be proactive with your objective of receiving a service-connected VA disability claims, and file today.

Happy Memorial Day --- Thank you for your service to our country.

4. Health Care Affecting Weapons Buy
Military retiree health care has long been a source of tension for active duty personnel and the retirees’ needs. In 1997, then USAF Surgeon General, Lt. General Charles H. Roadman II, discussed the impact of military need and budget on health care:

I also believe military leaders are faced with a social expectation problem because we recruited and retained on a promise to provide military retirees and their dependents health care for life. It's not in Title 10. It's not funded. But there is not an ounce of doubt in my body that we recruited and retained based on that [promise].

Lt. General Roadman’s statement illustrates the notion that this budget tension is not a new problem. What is new is the current and anticipated rise in health care expenditures to 12% of the DoD budget by 2015. This Title 10 deficiency noted in 1997 by Lt. General Roadman is reiterated today in other proposed findings of H.R. 579 that point out previously passed laws prohibited this fee shifting:

(13) The Department of Defense has chosen to count the accrual deposit to the Department of Defense Medicare-Eligible Retiree Health Care Fund against the Department of Defense's budget, contrary to the amendments made by section 725 of Public Law 108-375.

(14) Department of Defense leaders have reported to Congress that counting such deposits against the Department of Defense's budget is impinging on other readiness needs, including weapons programs, an inappropriate situation which section 725 of Public Law 108-375 was intended expressly to prevent.

Congress clearly states retiree health care is to be funded — it is unfair to continuously pit the needs of active-duty personnel against the needs of those whose service is ended.

5. Difference between civilian and military retirees.
An argument often heard as a statement to justify increasing the burden on military retirees is that civilians pay more for health care. This is a flawed argument. Civilian and military careers are not comparable. Military members accept hazardous and physically demanding positions with considerably less pay than paid to their civilian private sector counterparts. This lifetime of lower pay affects the ability to fund personal retirement plans, and, in acknowledgment, low cost or free health care promised as an offset to accepting military duty.

Conclusion.
Part 2 of the DoD Plan for Covering Military Retiree Health Challenged by GAO Blog discusses Sustain the Budget. The GAO report casts doubt on Sustain the Budget saving $1.9 billion for FY 2008. It is certain, Sustain the Budget will affect military retirees, with some retirees leaving TRICARE but not in the numbers required to balance the DoD budget. The question remains whether Sustain the Budget is the best plan for the nation to meet the escalating health care expenses within DoD. Unfortunately, Sustain the Budget does not answer where retirees will get health care coverage nor does the GAO agree with DoD’s estimates on the budget savings the DoD anticipates by retirees leaving TRICARE.

The escalating health care costs for retirees leave Congress with a dilemma. Congress clearly must choose from differing options. The options include either funding additional health care within the DoD budget, allowing the Sustain the Budget proposal to go into effect and affect retirees’ health care, or pass H.R. 579 and its companion Senate Bill to protect retirees’ health care and affect the DoD budget.

The 110th Congress proposed protecting retirees’ health care in H.R. 579, but Congress must decide on the path to follow and act. Precedent was set in 1986 when Congress stopped hospitals from avoiding emergency patients by passing the Emergency Treatment and Active Labor Act (EMTALA). Military retirees deserve no less protection — an act of Congress to prevent avoiding of veterans and the removal of military retiree health care funding from DoD.

However, the future of H.R. 579 is not bright. H.R. 579 referred to the Subcommittee on Military Personnel on February 1, 2007, where it continues to flounder. No further action has occurred on this bill even with 178 cosponsors. This bill appears headed for death in subcommittee.

Congress’ decision rests upon, does Congress believe a military retirees’ health care is not merely a benefit, but an entitlement, bought and paid for through decades of service protecting this country. Or does Congress believe the fiscal needs to control DoD health care costs and agree with the Bush Administration that military retirees’ health care should be aligned with general civilian health care plans as the cost containment measure for reducing the escalating health care of retirees.

Retirees have earned their “universal health care” and stopping DoD from changing retirees’ health care is best achieved by passing H.R. 579 and its companion Senate Bill. Congress must act now to protect retiree avoiding and the cutting of retiree health care funding from the Department of Defense.

Continue reading "Part 3 of 3 DoD Plan for Covering Military Retiree Health Care Challenged by GAO Report" »