At issue before the U.S. Supreme Court in the case of Howell v. Howell was the so-called veteran-offset and how it impacts a divorce settlement. This issue has been debated for years and became less of an issue when Congress waived the offset for certain cases. I previously wrote on the Concurrent Retirement Disability Pay that ended the offset for those whose disability rating is 50% or greater. What exactly is the offset?

Disabled veterans were required to select either their full retirement compensation from the Department of Defense or their VA disability benefit with a reduced retirement annuity. This penalty became known as the VA offset. Many veterans choose the offset, however, because disability payments are tax free. Congress waived this offset in the 2003 and 2004 defense authorization bills. Now veterans with career-ending combat injuries or those with a disability rating of 50 percent or higher are allowed to concurrently receive both types of payments. Monday’s ruling began in 1991.

Sandra Howell was awarded half of John Howell’s Air Force retirement pay when the couple divorced. In 2005, John, received a 20 percent disability rating from the Department of Veterans Affairs, and elected to waive $250 of his $1,500 per month in retirement pay, which is taxable, in favor of $250 monthly disability pay from the VA, which is not taxable. That reduced Sandra’s monthly divorce settlement by $125. Sandra went back to court, arguing that she should get half of what his retirement pay would have been if he had not opted for disability pay.

John Howell’s attorney argued that Congress intended for veterans to keep their disability pay, as it fills the gap for pay they will no longer be able to make in the future. The goal of protecting a veteran’s pay is not temporal in nature, he said, meaning it has nothing to do with whether the veteran is eligible for disability before or after the divorce. He also argued that the court previously decided, in Mansell v.Mansell, that the Uniformed Services Former Spouses’ Protection Act did not permit state courts to treat retirement pay that had been waived to receive veterans’ disability benefits as something that could be divided.

Sandra Howell’s lawyer tried to distinguish this case from Mansell because her ex-husband hadn’t waived his retirement pay until after the divorce settlement was finalized. But the Supreme Court ruled that state courts did not have the authority to take John’s disability benefits, regardless of its effect on his ex-wife.

If you have questions concerning your military pay or how your military status impacts your legal issues call Don Morrell at the Kendrick Law Group at 407-641-5847. Don is a 30 year veteran and Accredited VA Attorney.

We are often asked, “What happens after I file my Veterans Administration Application for Compensation?” After the Veteran’s Administration (“VA”) receives a VA Form 21-526 (Application for Compensation), it sends you a letter explaining the additional information needed to process your claim.

Step One – Information Gathering. Once you receive the letter in the mail, gather all of the requested information, and if possible, also provide details regarding the potential location of records or persons with knowledge that may support your documentation. It is the VA’s responsibility to assist you in gathering the requested information (including, but not limited to, records from private physicians, military medical records, letters from friends, employers, employees, or your spouse or significant other that can help your claim). All of this information should be sent to the name and address indicated on the initial letter you receive.

Step Two – Medical Exam. After the VA has reviewed all of the records and information you provided, the next step may be a medical exam conducted by the VA. This exam is free of charge. You must report for your exam on the scheduled date and time. If you cannot attend the exam at the scheduled date and time, immediately contact the person listed in the letter or your legal representative..

Step Three – Claim Evaluation. After your exam (if an examination was required), a Rating Veterans Service Representative evaluates your claim. Based on the law and the facts of your case, the Rating Veterans Service Representative will either approve or deny your claim.

Step Four – Claim Approval or Denial.

• Approval of Claim. If your claim is approved, the VA will send a letter stating the monthly payment amount you will receive. Along with the letter, you will receive VA Form 21-8764 (Disability Compensation Award Attachment), which states, “A check covering the initial amount due under this award will be mailed within 15 days. Thereafter, checks will be delivered at the beginning of each month for the prior month.” However, depending you particular circumstances, it may take longer.
• Denial of Claim. If your claim is denied, either you or your legal representative can file a Notice of Disagreement with your local VA office. You may use a VA Form 21-4138 (Statement in Support of Claim) to submit the Notice of Disagreement. The Notice of Disagreement must be filed within one (1) year after the date the local VA office sent the original decision that denied your claim. The Notice of Disagreement allows you to request that your file be reviewed a second time by a Decision Review Officer. The Decision Review Officer examines your file anew and can modify the Rating Veterans Service Representative’s decision, including the grant of benefits.

The Formal Appeals Process

Once the VA receives a Notice of Disagreement, it sends you a Statement of the Case that explains the laws, regulations, and evidence relied upon in denying your claim. The VA also sends a VA Form 9 with the Statement of the Case. In the VA Form 9 (Appeal to Board of Veterans’ Appeals), a veteran can request a hearing with the Board of Veteran’s Appeals at the local office or in Washington, D.C. The VA Form 9 must be mailed back before 60 days after the date the VA mailed the Statement of the Case or within one (1) year of the date that they mailed the original decision denying your claim, whichever is later.

If the claim is denied by the Board of Veterans Appeals, the next step is an appeal to the United States Court of Appeals for Veterans Claims. Subsequent appeals are filed with the U.S. Court of Appeals for the Federal Circuit and to the Supreme Court of the United States.

The time period and process for the VA to review a Notice of Denial depends on the complexities of your particular case. Additionally, any delays in responses to inquiries from the VA will lengthen the process. The shortest period in which a review may be completed is usually around 6 months, but generally it takes longer, with some claims not receiving an initial decision for well over a year from the filing date of the claim.
Along the way, you may wish to have legal representation regarding this sometimes confusing and often arduous process.

Should you wish to learn more about the process of obtaining Veteran’s Benefits, please contact Daniel J. Burns at dburns@elmattorneys.com.

Everett is an active Soldier in the U.S. Army Reserves, where he serves as a Command Judge Advocate in the JAG Corps. Throughout his military career Everett has mobilized and deployed multiple times. Additionally, he is prior enlisted and served on active duty for 13 years as a member of the U.S. Air Force; 4 years in the Florida Army National Guard as a Paralegal NCO; and 5 years in the U.S. Army Reserves as Chief Paralegal NCO. This experience continues to greatly contribute to his current practice of military law and veteran’s disability, which he focuses on as a sole practitioner as the Owner of Veterans Legal Advocates, P.A., and of counsel with Bogin, Munns & Munns.

Michael T. Waldrop is the owner/president of Blue Cord Design and Construction, LLC (a commercial design-build firm, whose purpose is to build a business in and around veterans and to provide business opportunities for those who have defended our freedom). 

Michael, a U.S. Army veteran, founded Blue Cord upon his return from Operation Enduring Freedom in 2008. He is the majority owner of the company, with over 12 years’ experience as a General Contractor in the southeast. Blue Cord’s clients include the Dept. of Veterans Affairs, Orange County (FL) government and the University of Central Florida, among others. 

The company is especially proud to have all five branches of the Armed Services represented on staff. If you want to hire a company that puts our veterans back to work, please contact Blue Cord. They would be honored to design and build your important project.