Concurrent Title 38 Disability Compensation and DoD Retirement Benefits for Retirees

A few days ago, I was speaking at an assisted living care facility regarding Title 38 benefits (Department of Veterans Affairs).  These discussions usually involve the adult children of World War II and Korean War veterans so they can have a basic understanding of what benefits their mother/father may be entitled to through the Department of Veterans Affairs (DVA).  The elderly spouse of a retired World War II officer was there and was under the incorrect understanding that a retired veteran cannot receive both compensation under Title 38 and military retirement pay.

While this was the existing rule until 2004, two separate statutory amendments may — and in many cases do — entitle a veteran to both military retirement pay and DVA disability compensation in full.  The Defense Finance and Accounting Service (DFAS) has a good breakdown of the two separate programs: (1) Concurrent Retirement and Disability Pay (CRDP); and (2) Combat Related Special Compensation (CRSC).

A link to the DFAS breakdown can be found at DFAS CRDP/CRSC.

What if the Medicaid home care services aren’t provided? part II

Previously I blogged about the problems faced by Medicaid-eligible people living in home and community-based settings when there isn’t a sufficient provider network to provide the services needed to maintain them in their residences, or there is substantial delay in getting the services started. The issue is that the government is obligated to provide the services in the least-restrictive setting under the Olmstead decision and the Americans with Disabilities Act (“ADA”) Now there are developments in Ohio which deal with that problem. In Ball, Burba et al. v. Kasich, Governor of Ohio, the  plaintiffs alleged that “ the failure of defendants, Ohio’s governor and several state agencies, to provide them with home- and community-based services forces plaintiffs to rely on volunteer family caregivers to remain at home and places them at serious risk of institutionalization in a large Intermediate Care Facility (“ICF”).” The State moved to dismiss, saying that being ‘at risk” doesn’t give them standing to sue. The U.S. Department of Justice has now filed a Statement of Interest, asking to intervene (i.e., participate) in the case.

The USA wrote to the Judge that “The United States files this Statement of Interest to clarify that non-institutionalized individuals with disabilities who are not currently receiving state-funded home- and community-based services may bring a claim that a public entity has placed them at risk of institutionalization or segregation in violation of the “integration mandate” of Title II of the Americans with Disabilities Act. See 28 U.S.C. § 517. “

To me, this is an exciting development. Eligible people who aren’t receiving services to which they are entitled are clearly being injured by such governmental delay. People who need 24/7 care and lack sufficient care services in their homes are clearly at risk of nursing home placement. The injury could be irreparable.

Call us for advice and assistance with Medicaid applications and advocacy for services … 732-382-6070

Veterans Affairs Extends Presumption Period for Persian Gulf War Veterans to December 31, 2021

Beginning in 1994, Congress implemented a statutory provision, 38 U.S.C. 1117, for a presumption of service connection for undiagnosed chronic multi-symptom illnesses for veterans who served in the Southwest Area theater of operations during the Persian Gulf War.  Because the Persian Gulf War is still considered a statutorily defined period of war, 38 U.S.C. 1117 applies to more recent veterans with service in Southwest Area (the area is further defined by regulation).  Congress amended 38 U.S.C. 1117 in 2001 and the current definition of “chronic disability” includes: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of sings and symptoms; or (3) any diagnosed  illness that the DVA Secretary determines warrants a presumption of service connection.

From the standpoint of timeline, in order to be entitled to the presumption of service connection, the covered condition must have must have manifested in during service in Southwest Asia or to a ten percent (or more) disability rating during the time following service as defined by the Department of Veterans Affairs through regulation.

The DVA has implemented 38 U.S.C. 1117 in regulation through 38 C.F.R. 3.317.  Over the years, the DVA has extended the period of time for the presumptive period on numerous occasions as the DVA and the National Academy of Sciences continued to evaluate and conduct studies regarding exposure in the Persian Gulf and conditions related to that exposure.  There was a sunset date in 38 C.F.R. 3.317(a)(i) for the presumptive period of December 31, 2016.

As evidenced in the hyperlinked Final Rule below, on October 17, 2016, the DVA extended the presumptive period to December 31, 2021 by amending Section 3.317(a)(1). A link to the regulatory amendment can be found at

The rules regarding the presumption for service connection for Persian Gulf War veterans have remained a subject of much confusion over the years.  If you have questions regarding 38 U.S.C. 1117; 38 C.F.R. 3.317, please do not hesitate to contact me at (732) 382-6070 or via email at



The NJ Estate tax may be going away, but you can still do important planning with a Will

On October 14th, Governor Christie signed a tax package into law which does away with the New Jersey estate tax  and certain income taxes in exchange for a 23 cent per gallon increase in the gasoline tax so that the roads and bridges can be repaired. There’s still no estate tax on any assets that pass at death to your spouse.  At the present time, the estate tax exclusion is only $675,000, so many couples have estate plans in which this amount is transferred at death into a ‘credit shelter trust” for the surviving spouse so that it will pass to the heirs free of estate tax when the second spouse dies. About 99 % of NJ estates have to pay estate tax. As of January 1, 2017, $ 2 million can pass to your other heirs free of estate tax. The estate tax will be totally repealed as of January 1, 2018. With the new law, this # will likely drop to less than 15% in 2017 (based on the 2014 tables from the Office of Legislative Services cited by Forbes Magazine).

So do you need a Will? Certainly. Without a Will, the law determines who inherits your estate. On the other hand, if you want to distinguish among your next of kin and leave unequal amounts, you need to sign a document such as a Will. If you don’t want a certain person to inherit their share outright — because of pending divorce, or debtor-creditor problems, or disability or youth — you need to consider writing a trust into your Will to receive their share. Oftentimes, a person who is on disability benefits like SSI or Medicaid inherits assets because their parent didn’t plan things carefully. They are then at risk of losing their benefits because they’ve got access to resources. Court proceedings are often required, to establish a Special Needs Trust and direct the inheritance into the trust.

With estate taxation disappearing as an issue for most people, it’s important to turn your attention to how you’d like your estate to be managed over the long-term for the greatest benefit of your heirs. Has it been years since you looked at your old Will? …………….

Call us for updated estate and trust planning … 732-382-6070

Reduction of Home Care Hours Under Medicaid Can’t be Arbitrary

New Jersey Family Care is the Medicaid a program that provides MLTSS — Medicaid Long-Term Services and Supports. The home care program is called HCBS — Home and Community-Based Services. Once the applicant has been found eligible for Medicaid and is assigned a Medicaid case number, s/he must select a Managed Care Organization (MCO). S/he will then receive a visit from a Case Manager from the MCO, who will determine the number of hours of services which will be provided. See prior posts for more discussion about that process. This initial determination is appealable.

The case will then be reviewed periodically. Reviews are usually done done every six months, using a MCO tool that conforms with state Medicaid guidelines. The MCO has a vested interest in keeping the hours of service as low as possible, which creates a conflict with the aged person who wishes to age in place in the community, but this is balanced with the MCO’s obligation to reduce risk and prevent institutionalization. Hours cannot be arbitrarily reduced. The MCO must be able to document that there has been a change in the Medicaid participant’s condition which justifies the reduction of services, unless hours were awarded prior to MLTSS by another MCO.  Here, here and here are three good  recent examples of Final Agency Decisions in cases that involved reductions in hours.

The goal is to keep people at home and out of nursing homes.As the advocate for the Medicaid participant, you can monitor the services provided as well as the capability of the individual and whether there has been any improvement in their health condition or their ability to take care of him/herself. This will provide you with some of the ammunition needed should you be faced with a notice of reduction in hours.


Call us for advice on Medicaid eligibility, applications and appeals … 732-382-6070