Remarriage terminates widow’s eligibility for disabled veterans property tax exemption

There are some circumstances in which a person’s eligibility for governmental benefits is affected by his or her marital status. This is certainly the case with Medicaid/MLTSS; Supplemental Security Income; and exemption from inheritance tax on receipt of an inheritance. The NJ Appellate Division had the opportunity recently to decide whether a veteran’s widow would retain her eligibility for his veterans’ property tax relief if she remarried. In  Pruent-Stevens v. Toms River Twp., the property owner’s first husband was an honorably-discharged Viet Nam veteran. He died before 1997 at a time that he had a pending claim for service-connected compensation benefits due to exposure to Agent Orange defoliant. She remarried , and her second husband died in 1997.  eventually, in 2014 (!) the Veterans Administration approved the claim and declared that the first husband had died of a service-connected disability. She then filed for disabled veterans property tax relief from Toms River.

The relevant statute allows a town to grant tax relief to the widow/widower of a disabled veteran  provided that s/he “has not remarried.”  The issue in the case was whether that status only pertained to the time that the application for the exemption was filed, or if it was a blanket cut-off for exemption eligibility for a widow who remarries at any time.  The New Jersey Tax Court  decided that the phrase “has not remarried” should be interpreted to mean that as long as the widow/er wasn’t married at the time of the application for exemption, the exemption would be available. In other words, it could turn on and off. She was unmarried in 2016 when her application was filed, so the Tax Court ruled in her favor. The Town appealed.

The Appellate Division reversed.  Finding that she had no “vested right” at the time of her 1997 remarriage, and that in other areas of New Jersey law, “widow” is defined as a person who has not remarried,  the court ruled that the potential entitlement to the exemption was lost as a result of having ever remarried.

Call us for advice on senior care planning and estate planning ….

732-382-6070

Blue Water Vets, Gray v. McDonald, Round 2, To Be Continued Again . . .

Previously, I had blogged about an April 23, 2015 decision from the Court of Appeals for Veterans Claim (CAVC)  in Gray v. McDonald.  In Gray, the CAVC had remanded because the Department of Veterans Affairs’ (VA) interpretation of “inland waterways” for the purposes of the presumption of exposure to Agent Orange (TCDD) was found arbitrary.  Link to that blog post (to include a recent District Court of Columbia decision on a similar issue) can be found at:

CAVC – Blue vs. Brown Water Veterans and Inland Waterways . . . To Be Continued

As the following ProPublica article discusses, the VA has reassessed the definition of “inland waterways” and published a fact sheet for Blue Water veterans.  I have uploaded the VA Fact Sheet on Blue Water Navy.  Essentially, the VA maintained their analysis of blue water versus brown water, though Qui Nhon Bay and Ganh Rai Bay are no longer considered inland waterways.  Similarly, DaNang Harbor, Nha Trang Harbor, and Cam Ranh Bay are not considered inland waterways.

VA now defines “inland waterways” as such:  “inland waterways to end at their mouth or junction to other offshore water features, as described below. For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway is determined by drawing a straight line ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers.”

Whether this satisfies the CAVC’s concerns regarding arbitrary designations remains to be seen.  Whether the VA simply modifies the M21-1 (the VA Adjudication Manual) or — to resolve any issues regarding the Administrative Procedure Act’s (APA)  notice-and- comment requirement — proposes a regulatory amendment also remains to be seen.

The APA issue interests me greatly because of a Supreme Court decision last year in Perez v. Mortgage Bankers Assoc.,135 S. Ct. 1199 (2015).  In Perez, the Supreme Court held that the Administrative Procedure Act (APA) does not require a federal agency to adhere to the APA’s notice-and-comment rulemaking when it issues a rule interpreting own of its own regulations.  While the decision garnered little attention, it has the potential to have a significant impact on how federal agencies operate.  To date, the CAVC/Fed. Cir. have yet to address the impact of Perez on Title 38 issues.

If you have questions regarding the presumption of exposure to Agent Orange, please don’t hesitate to contact me at sdirector@finkrosner.com or via telephone at (732) 382-6070.

Link to Senate Committee on Veterans’ Affairs – Toxic Chemical Exposure

The Senate’s Committee on Veterans’ Affairs [hereinafter “Committee”] commonly holds hearings on a variety of issues effecting veterans. Most recently, the Committee held a hearing entitled, “Examining the Impact of Exposure to Toxic Chemicals on Veterans and the VA’s Response.” The testimony submitted at the hearing provides a good overview of issues pertaining to Agent Orange (2,3,7,8-Tetrachlorodibenzo-p-dioxin (TCDD)) exposure during the Vietnam war and volatile organic compound (VOC) exposure at Camp Lejeune, North Carolina. 

For those interested, a link to both the oral and written testimony can be found at http://www.veterans.senate.gov/hearings/exposures09292015.

 

Military Times Article on Camp Lejeune and “Blue Water” Veterans

I normally don’t comment on proposed federal legislation regarding Title 38 (Department of Veterans Affairs) unless I feel reasonably certain that the legislation is likely to be passed in some form.  A recent Military Times article, however, identified two issues that have been ongoing within the Department of Veterans Affairs: (1) Title 38 benefits for veterans exposed to VOCs at Camp Lejeune, North Carolina; and (2) proposed changes to the statute regarding presumptions of exposure to Agent Orange (TCDD) for Vietnam-era veterans who served aboard ship off the coastal waters of the Republic of Vietnam (colloquially referred to as “Blue Water Veterans”). The Military Times Article can be accessed at this link.

In relation to the Senator Kirsten Gillibrand’s cited “Blue Water Navy Vietnam Veterans Act of 2015”, this bill was referred to committee in March 2015 (this is normally not a positive indication of passage).  I believe a similar bill was also re-introduced in the House early this year. You can track the bill at S 681 (Blue Water Veterans).  The Australian Agent Orange study Senator Gillibrand referred to can be accessed — without cost —- at the following link Researchgate Australian Veteran Study.

If you have questions concerning eligibility or entitlement to benefits under Title 38, please do not hesitate to contact me at (732) 382-6070 or via email at sdirector@finkrosner.com.

 

Rating Decision Granting 100% Disabled . . . Ancillary Benefits and Long-Term Estate/Elder Law Planning

As we had previously blogged, a number of veterans we represent involve the question of whether the veteran had sufficient service at or near Vietnam to qualify for presumption of service connection under 38 C.F.R. § 3.307(a).

In one such claim, located travel orders out of Vietnam provided sufficient information for the Department of Veterans Affairs (VA) to grant service connection for conditions related to Agent Orange exposure.  As often happens, the prior decision subject to Notice of Disagreement did not fully resolve all issues before the Department of Veterans Affairs (VA).  For that veteran, a recently promulgated Rating Decision granted 100% disability for ischemic heart disease (IHD) resolved many of the issues regarding current rating percentage.  I’ll note, given the fact that the veteran’s level of disability unfortunately increased in severity shortly after issuance of the prior Rating Decision granting service connection for IHD, both factually and tactically the proper action was to file a claim for increase rather that a Notice of Disagreement.

There remains a few other issues pending, however, the Agency of Original Jurisdiction (in this case Newark Regional Office) has been pretty efficient with processing so I suspect all issues will be resolved in the near future.  While the recent Rating Decision granting 100% permanently and totally (P&T) disabled was obviously favorable, there were a number of ancillary benefits that I needed to discuss with the veteran.  These ancillary benefits commonly overlap with a veteran’s long-term estate and elder-care planning as detailed in a recent article from WealthManagement.com.  These ancillary benefits include:

1) Change in Priority Group for the Veterans Health Care Administration.  More information can be found at http://www.va.gov/healthbenefits/;

2) Service-Disabled Veterans Insurance (S-DVI).  More information can be found at http://www.benefits.va.gov/insurance/s-dvi.asp;

3) Enrollment in CHAMPVA for the veteran’s spouse.  More information can be found at http://www.va.gov/hac/forbeneficiaries/champva/handbook/chandbook.pdf;

4) Eligibility for Dependents’ Educational Assistance Program (DEA).  More information can be found at http://www.benefits.va.gov/gibill/docs/pamphlets/ch35_pamphlet_2.pdf

5) Eligibility for Armed Forces Commissary and Exchange privileges.  More information can be found at http://www.mcinfoex.net/?q=personal/commissary-and-exchange-privileges; and

6) State benefits, to include NJ Property Tax exemption.  More information on the New Jersey property tax exemption, as well as other benefits for qualified veterans, can be found in the NJ Veterans Guide published by the New Jersey Department of Military and Veterans Affairs.