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DISABILITY BENEFITS FOR HIV-POSITIVE VETERANS

By now most of us are familiar with the availability of Social Security Disability benefits and Supplemental Social Security Income, but not as well known are the variety of benefits available only to veterans. This article will provide a brief overview of several of the benefits that veterans with HIV/AIDS may qualify for. This will not be an exhaustive list, and if you are a veteran, the best thing for you to do is contact an attorney. Veteran's benefits can be complicated, and there are many requirements to meet in order to receive any or all benefits.

Terms of Discharge

The most important qualification is that you were discharged under conditions other than dishonorable. There are basically five types of discharges issued by the military services: (1) honorable discharge (HD); (2) discharge under honorable conditions (UHC), or general discharge (GD); (3) discharge under other than honorable conditions (UOTHC), or undesirable discharge (UD); (4) bad conduct discharge (BCD) ( which can be issued by sentence of either a special court-martial or a general court-martial); and (5) dishonorable discharge (DD) or a dismissal, the latter in a case of an officer (both are issued only by a general court-martial).

It is important to know what type of discharge you received. This information is noted on your discharge papers, known as your DD-214. If you no longer have a copy of your DD-214, you can requested a copy from your local VA. Many services are only provided to veterans with an HD or GD, but it is possible to upgrade a discharge depending on the reasons for the discharge being UOTHC. If you have a UOTHC discharge, and would like to try to get it upgraded you should contact an attorney.

Length of Service

A second general requirement is length of service. If you served prior to September of 1980, there was no length of service requirement for general eligibility for benefits. Currently, for individuals who enlisted in the military service after September 8, 1980, they must complete a minimum period of service, either 24 months of continuous active duty or the full period for which the veteran was called or ordered to active duty. In addition, some specific benefits have their own length of service requirements which I will explain below. Now, what are these benefits?

Health Care

All veterans who served for two years or who completed his or her assigned tour, and were discharged with and HD or GD, qualify for free health care at any VA hospital. The VA hospital in the metro Atlanta area is located at 1670 Clairmont Road in Decatur. The VA hospital has an Infectious Disease unit, and mental health services in addition to other areas of care. Medications are also provided for a $2.00 co-pay for each medication for a 30 day supply. This co-pay can be waived if the veteran has no income of has such a low income that he or she meets the means test.

Compensation Benefits

Also known as service-connected disability compensation, compensation benefits are provided to veterans who meet three qualifications: (1) the veteran was discharged under conditions other than dishonorable; (2) their disability or disease was incurred in the line of duty; and (3) the disability is not the result of their own willful misconduct. The VA uses five basic means to determine a condition is "service-connected: (1) The condition was incurred or aggravated coincident with service; (2) a condition that pre-existed service was aggravated or became worse during service; (3) a condition not manifested (not shown) during service should be presumptively service-connected; (4) the disability is a secondary result of another service-connected condition; or (5) the condition )or the resultant death) is the consequence of VA health care. For people with HIV/AIDS, the VA normally awards service-connected disability status if the veteran tested positive while in the service or within one year of the date of discharge the condition is "service-connected."

Payments range based on the "percentage rating" the VA determines the veteran's disability to be. The amount is raised for each additional child of the veteran. Veterans rated at 30% or higher are also entitled to additional benefits for their dependants. Compensation benefits ARE NOT needs based, meaning veterans can qualify for these benefits regardless of their income as long as they are determined to be 10% or more disabled by a "service-connected" disability. (The VA rates disabilities on a schedule of 0%, 10%, 20% and so on).

It is important for veterans who discovered their HIV+ status while in the service to establish the fact that they have a "service-connected" disability. Even with a disability rating of 0%, a level at which veterans receive no monetary compensation, veterans can be entitled to other benefits such as preference in federal/state employment, job retention rights, and basic entitlement to VA health care. In addition, once the service-connected nature of the disability is established, veterans can apply for increases as their condition worsens.

The VA has established two methods for determining a veteran is 100% disabled. First, if the symptoms of the service-connected disability are consistent with the 100% rating in the VA rating scale 100% will be assigned. The rating scale is based on the "average" impairment in earning capacity. This means if the average individual with the veteran's symptoms could not work then the veteran meets the eligibility requirements. The second method is called "individual unemployability." This method exists to take into account the individual veteran's situation. Because the rating system is based on averages, this system allows the VA to find a veteran 100% disabled even if the average person with the same symptoms may be able to work. This second method is more difficult to prove, but it is an available means of obtaining benefits.

Pension Benefits

Also known as non-service-connected disability pension, pension benefits are available only to disabled veterans who served during a time of war and were discharged under conditions other than dishonorable. Pension benefits are similar to Supplemental Social Security Income (SSI) in that the amount of the benefit is based on the income and net worth of the veteran.

There are five basic eligibility requirements for pension benefits: (1) the veteran must be discharged under other than dishonorable conditions; (2) the veteran must have active service that includes a total of ninety days during one or more periods of war, ninety or more consecutive days, one day of which is during a period of war, or at least one day of wartime service that results in a discharge for a service-connected disability; (3) for entitlement to pension benefits the veteran must have a limited income and net worth that does not provide adequate maintenance; (4) the veteran must currently be permanently and totally disabled; and (5) the permanent and total disability must not be due to willful misconduct of the veteran.

The VA has set dates for "periods of war" which include the following dates:
* The Mexican Border War: May 9, 1916, through April 5, 1917.
* World War I: April 6, 1917, through November 11, 1918, extended to April 1, 1920, for those who served in the Soviet Union. Service after November 11, 1918, through July 2, 1921, qualifies for benefits purposes if active duty was performed for any period during the basic World War I period.
* World War II: December 7, 1941, through December 31, 1946, extended to July 25, 1947, where continuous with active duty on or before December 31, 1946.
* Korean Conflict: June 27, 1950 through January 31, 1955.
* Vietnam Era: August 5, 1964, through May 7, 1975.
* Persian Gulf War: August 2, 1990, through the present.

Currently, Congress has not set a date closing the Persian Gulf War period and the VA is proceeding as if the period is still open.
There are three different pension programs veterans could currently be enrolled in, Improved Pension, Section 306 Pension, and Old Law Pension. The latest VA pension program, the Improved Pension Program, is the only pension currently available to new applicants or any claimant who enrolled after January 1, 1979. Because of this, this article is referring to the Improved Pension program whenever referring to Pension Benefits.

Income eligibility for pension benefits is based on the veteran's income and the income of the veteran's spouse. The VA deducts countable income, on a dollar-for-dollar basis, from this maximum limit to determine the monthly pension rate. Like SSI the VA looks at net worth in addition to income counting the "market value, less mortgages or other encumbrances, of all real and personal property owned by the claimant, except the claimant's dwelling (single-family unit), including a reasonable lot area, and personal effects suitable and consistent with the claimant's reasonable mode of life."

It is important to note that if a veteran decides to apply for the pension benefits and is awarded the full amount he or she could lose SSI and the Medicaid that comes with SSI. If the veteran is receiving care at the VA, including medicines, he or she may decide this is the right choice, but this should be discussed on a case by case basis.

The decision of whether to award pension benefits is made by adjudicators in the VA regional offices. First the adjudicator establishes basic service eligibility and then the adjudicator establishes income eligibility. It is only after these two criteria are met that a disability determination is made by the rating board. It is easier for the veteran to be found totally disabled under the pension program because ALL of his or her disabilities are considered not just service-connected disabilities. Once the veteran is determined totally disabled the pension is usually awarded from the date of receipt of the application. Back pay can be awarded for up to one year prior to the date of receipt of the application if the veteran specifically claims entitlement to retroactive benefits.

Unlike compensation benefits which can be awarded at anywhere from 10% up to 100%, pension benefits are only awarded when the veteran is totally disabled. This means for the most part the veteran cannot be working. If the veteran is only "marginally employed" and making less than the maximum benefit amount he or she may still qualify for pension benefits if the reason why the veteran is not working more is due to his or her disability.

Special Monthly Pension

Pension benefit amounts can be raised under special conditions. There are two types of special monthly pensions (SMP). The first is called "housebound benefits" (HB), and the second is called "aid and attendance" (AA). If the VA determines that a veteran's disability has made the veteran permanently housebound then HB benefits will be awarded. If the VA determines that a veteran needs the regular aid and attendance of another person then AA benefits are awarded. There is not a separate application form for SMP, but it is normally necessary to support a request for such benefits with a statement from a physician stating why the veteran is housebound or in need of regular aid and attendance.

Establishing Eligibility for HB Benefits: There are two ways a veteran can prove eligibility for HB benefits. First, if the veteran can show that he or she has a single permanent disability rated at 100% which substantially confines the veteran to his or her dwelling, then eligibility for HB benefits is established. Second, if a veteran has a single disability rated at 100% and an additional disability independently ratable at 60% or more, then eligibility for HB benefits is established even if the veteran is not actually housebound.

Establishing Eligibility for AA Benefits: A veteran must need regular aid of another person in order to receive AA benefits. Need for AA benefits can be established by showing one or more of the following: (1) the veteran is blind or has a visual impairment of 5/200 or less in both eyes or concentric contraction of the visual field to five degrees or less; (2) the veteran is a patient in a nursing home or hospice because of mental or physical incapacity; (3) the veteran is unable to dress or undress or keep himself or herself clean and presentable; (4) the veteran needs adjustments to any special prosthetic or orthopedic appliances or is not able to attend to the wants of nature; or (5) the veteran has a physical or mental incapacity that requires assistance on a regular basis to protect the veteran from the hazards of his or her environment.

Remember that the need does not have to be constant but only regular. If the veteran is in a nursing home or hospice A&A is presumed without need for further support.

Veterans benefits are diverse, and it is impossible to cover them in a short article. This article is intended only as an overview of veterans benefits, specifically compensation and pension benefits, and it is not specific legal advice. If you have specific questions concerning your own situation you should call an attorney.

For help with benefits, call:
Georgia Department of Veteran's Benefits
(404) 929-5345
Veteran's Affairs Department, Benefits Information
(800) 827-1000
Also, see the National Veterans Legal Services Program.

Jennifer Beardsley
Atlanta Legal Aid Society
AIDS Legal Project
October 1, 2002