What is Survivors (Death) Pension with Aid and Attendance?

Survivor's Pension – also known as Death Pension – is a disability income program available to the single surviving spouse and/or dependent children of a deceased veteran who served during a period of war.

Eligibility requirements for the deceased veteran include active duty service for at least 90 days - with one of those days during a period of war - and an honorable discharge or a discharged classified as other than dishonorable. Service in combat is not required. For deceased veterans of the Gulf War, the service requirement is 24 months or completion of the requirement for active duty service, whichever comes first.

Here is the Period of War chart for benefit purposes:

Period of War

Beginning and Ending Dates

World War II

December 7, 1941 through December 31, 1946

Korean Conflict

June 27, 1950 through January 31, 1955

Vietnam Era

August 5, 1964 through May 7, 1975; for veterans who served "in country" before August 5, 1964, February 28, 1961 through May 7, 1975

Gulf War

August 2, 1990 through a date to be set by law or Presidential Proclamation


Definition of Surviving Spouse and Rules Pertaining to Application

The rules pertaining to application for Survivor's Pension for a single surviving spouse – who was married to a veteran– are very much the same as the rules pertaining to application for Pension. There are, however, some minor but very important differences.

The single surviving spouse can be any age and does not have to be permanently and totally disabled prior to age 65. The veteran, who died, did not have to be totally disabled if death occurred before age 65. The veteran who died does have to qualify based on active duty service days as well as serving during a period of war.

Application should not be made unless it is certain that the surviving spouse meets the rules to be a surviving spouse. All of these following conditions must apply or the surviving spouse is not eligible for Death Pension.

  1. The surviving spouse must have met the conditions to be married under VA rules. Generally this means a marriage lasting at least one year or a child was born as a result of the marriage regardless of the length of time married. Under certain conditions, VA will also accept common-law marriages or marriages where the couple held themselves out to be married and can prove that was their intent.
  2. The surviving spouse must have lived continuously with the veteran while they were married unless they were separated due to the fault of the veteran.
  3. The surviving spouse must have been married to the veteran when the veteran died.
  4. The surviving spouse cannot have remarried after the veteran's death even if the surviving spouse is currently single. There is one exception to this rule. If the surviving spouse remarried after the veteran's death and that marriage has been terminated either through death or divorce prior to November 1 of 1990 and the surviving spouse has since remained single, that person can still receive the benefit.

Dependency and Indemnity Compensation

Survivor's Pension is the sister benefit to Dependency and Indemnity Compensation (DIC). DIC is covered in another section on this website and is a tax free monetary benefit generally payable to a surviving spouse or child or parent of a service member who died while on active duty, active duty for training, or inactive duty training. It is also available to survivors where the veteran died from a service-connected condition. DIC for parents is an income based benefit. We run across DIC for parents so infrequently, it is not discussed on this website.

A surviving spouse cannot receive Survivor's Pension and DIC at the same time. DIC is always the preferred benefit as it pays more and does not require a means test to qualify. The surviving spouse may switch back and forth between the two benefits.

Here are some statistics for various VA programs. DIC recipients make up a little less than 10% of all Compensation/ DIC Beneficiaries. Survivor's Pension recipients make up approximately half of all Pension Beneficiaries.

 

2016
Actual

2017
Estimate

2018
Estimate

Compensation Beneficiaries

4,269,523

4,446,347

4,616,764

DIC  Beneficiaries

394,813

408,013

419,948

Pensions Beneficiaries

291,904

288,630

289,178

Survivor's Pension Beneficiaries

203,771

209,606

204,006

Source: DVA 2018 Budget Proposal

Survivor's Pension will pay the difference between the surviving spouse's gross household income and the applicable rate in the table below. There is a special provision, which we will explain later, that allows the spouse to deduct ongoing care and medical expenses from his or her income. These claimants must be "medically rated" in order to make these deductions and will qualify for a higher paying benefit.

Aid and Attendance

Survivor's (Death) Pension is sometimes called the "Aid and Attendance Benefit." This misnomer has become common place due to a general need for the aid and attendance of another person and a medical rating to qualify. The "aid and attendance" or "housebound" terms pertain to medical ratings and 16 different monetary allowances available with Veterans Pension, Survivor's Pension, Disability Compensation, Dependency and Indemnity Compensation (DIC) and certain forms of Special Monthly Compensation (SMC). See the previous section on the table of contents for more information on these allowances.

2019 Maximum Annual Survivors Pension Rates (MAPR)
 Effective December 1, 2018 – 2.8% Annual Increase

If you are a surviving spouse...

 

Annual

Monthly

MAPR Without Dependent Child

$9,078

$756

No dependents, medical expenses must exceed 5% of MAPR

$453

$38

MAPR With One Dependent Child

$11,881

$990

With dependents, medical expenses must exceed 5% of MAPR

$594

$50

Housebound Without Dependents

$11,095

$924

Housebound With One Dependent

$13,893

$1,157

A&A Without Dependents

$14,509

$1,209

A&A Without Dependents (SAW Veteran's Surviving Spouse)

$15,097

$1,258

A&A With One Dependent

$17,309

$1,442

A&A With One Dependent (SAW Veteran's Surviving Spouse)

$17,833

$1,486

SBP/MIW Annuity Limitation

$9,078

$756

Add for Each Additional Child

$2,313

$192

MAPR FOR CHILD ALONE

$2,313

$192

Child Earned Income Exclusion effective 1/1/2018

$7,200

$600


How Survivor's Pension Is Calculated

For Surviving Spouses without an "Aid and Attendance or Housebound Rating", VA calculates Survivor's Pension Benefits as follows:

  1. Gross Household Income – Income Exclusions – Certain Ongoing Medical Expenses = Income for VA Purposes (IVAP). We will discuss Medical Expenses and IVAP below. Then,
  2. Applicable MAPR – (IVAP + 5% deductible) = Actual Benefit

For Surviving Spouses with an "Aid and Attendance or Housebound Rating", VA calculates Survivor's Pension Benefits as follows:

  1. Gross Household Income – Income Exclusions – Income Exclusions – Most Ongoing Medical Expenses = Income for VA Purposes (IVAP). We will discuss Medical Expenses and IVAP below. Then,
  2. Applicable MAPR – (IVAP + 5% deductible) = Actual Benefit

The Income Test and Income for VA Purposes (IVAP)

Survivor's Pension is based on a maximum yearly income amount called the "Maximum Annual Pension Rate" (MAPR), discussed above. A claimant's household income – combined income of the surviving spouse and dependents where applicable – must be less than this amount in order to qualify for a benefit. The actual benefit amount paid to the surviving spouse is the difference between this MAPR and the combined gross household income reduced for medical costs and adjusted by a 5% deductible. This adjusted income is called "Income for VA Purposes" or IVAP by VA. If a claimant's IVAP is zero or negative, the benefit is paid in full. If the widow has a need for the aid and attendance of another person the MAPR is much higher.

Claimants, qualifying on income alone, without a rating for aid and attendance or housebound, typically need to make such little money that they are below the poverty level. It is worthwhile to make application for these very low income widows even though the benefit might only be a few hundred dollars. For example, if a surviving spouse is healthy and her gross household income is a mere $500/month, she would qualify for the difference between the Basic Survivor's Pension Rate of $735/month less the $500 and the 5% deductible. The benefit for her in this situation would be ($735 – $500) - $36 = $199/month.

As mentioned above, combined household income of the claimant cannot exceed the Maximum Annual Pension Rate (MAPR) for that category of application. For example, using rates for 2018, a surviving spouse with no medical rating and one dependent child cannot have a combined income of more than $11,557/year or $963/month from all sources. Fortunately, the household income can be reduced by ongoing care and medical costs to meet the income test under certain conditions which we will discuss below. Thus, widows earning as much as $4,000 a month or more might still qualify even though their current income is greater than the applicable rate.

VA considers income to be anything that comes through the door as cash or the equivalent of cash in a given year. Withdrawals from IRAs, 401(k)s and other retirement accounts are considered income. The cash left in the IRA is also considered an asset. Social Security income and monthly retirement from employment Pensions are considered income. Monetary gifts, winnings from gambling, and inheritances are also considered income in a given year. Long Term Care Insurance is also considered income.

Income Exclusions

Some forms of receipt are not considered income for Survivor's Pension purposes. A reverse mortgage is not considered income and does not need to be reported. Ongoing income from Survivor's Pension itself and the retroactive benefits paid to Survivor's Pension claimants are not considered income, nor is the retroactive amount considered an asset for purposes of Survivor's Pension. It is important to understand existing Survivor's Pension payments do not need to be counted as income if an increase in Survivor's Pension benefits is requested at a future date.

Payments from welfare programs such as Medicaid, SSDI, or SSI are also not considered income. Certain types of government grants and awards are not considered income. Beware that new VA Survivor's Pension benefits adding to income can adversely affect these welfare payments. Before applying, reach out to these welfare agencies to verify impact from new VA benefits.

For an entire list of exclusions, see M21-1, Part V, Subpart iii, Chapter 1, Section I.

The Rating for Aid and Attendance

A Rating Allows for Special Deductions and Additional Income Allowances
VA will provide additional income in the form of an allowance on top of the basic Survivor's Pension benefit of $8,830/year or $735/month if the widow has a regular medical (care) need for assistance or a need for supervision due to disability. This is sometimes called "Improved Survivor's Pension" or "Survivor's Pension with an allowance."

A medical need for assistance or supervision due to disability is, in most cases, crucial to getting the Survivor's Pension benefit or not getting it. A so-called "rating" from VA recognizes either the regular need for aid and attendance from another entity or the condition of being housebound. This rating, determined by a doctor's examination is determined from VA Form 21-2680, and allows certain medical and care expenses and ancillary non-medical expenses to be subtracted or deducted from future income.

A "rating" also increases the allowable Survivor's Pension rate as seen above in the MAPR Chart. For example, a surviving spouse with no rating is only eligible for basic Survivor's Pension, up to $735/month. If the same surviving spouse becomes unhealthy and proves a need for the ongoing aid and care of another individual, he or she would be eligible for up to $1,176/month.

Except for very poor households, most widows could not get the Survivor's Pension benefit without this special rating provision for the deduction of personal care and medical-related expenses simply because their income is too high.

The high cost of medical and medical-related expenses associated with long term care such as home care, assisted living or nursing home care are usually the main deductible expenses VA counts when calculating the benefit. A surviving spouse, for example, who is paying $3,000/month for care at assisted living and has income of $2,800/month would qualify for the full Survivor's Pension benefit with the aid and attendance allowance of $1,176/month IF that surviving spouse was "rated" for the need of aid and attendance of another person.

Unfortunately, very few of all eligible surviving spouses are actually receiving Survivor's Pension. Most do not know of the benefit nor this special deduction.

Criteria for Determining a Need for "Aid and Attendance"
Below is a short summary VA's criteria for evaluating the claimant's need for "Aid and Attendance" or being "Housebound".

38 CFR § 3.352 Criteria for determining need for aid and attendance and "permanently bedridden."

(a) Basic criteria for regular aid and attendance and permanently bedridden. The following will be accorded consideration in determining the need for regular aid and attendance (§3.351(c)(3):

• inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable;
• frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.);
• inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness;
• inability to attend to the wants of nature;
• or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment.
• "Bedridden" will be a proper basis for the determination (need for aid and attendance). For the purpose of this paragraph "bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice.

It is not required that all of the disabling conditions enumerated above be found to exist before a rating may be issued. The particular personal functions which the surviving spouse is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary the evidence establish that the surviving spouse is so helpless as to need regular aid and attendance, not that there be a constant need.

Determinations that the surviving spouse is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance.

Examples of the Importance of a "Rating" when Deducting Expenses
A medical or disability rating for "Aid and Attendance" or "Housebound" is not only important in producing a larger possible Survivor's Pension income – due to the larger MAPR with an allowance – but also in receiving credit for unreimbursed medical expenses (UMEs). A list of allowable medical expenses is given below.

For example, a surviving spouse in assisted living, who is there primarily for retirement and social aspects and not because of the need for assistance, could not apply his or her room and board costs towards reduction of his or her income. VA would not allow these expenses. On the other hand, with an "Aid and Attendance" rating and some "custodial care" from the facility, the total cost of assisted living, including room, board and care would all count as UMEs.

Another example is someone receiving care at home. Without the additional disability ratings, the only recurring medical costs the surviving spouse is allowed to count as unreimbursed medical expenses are those paid to licensed health professionals providing care in the home. With a rating for "Aid and Attendance," the widow's payments to private caregivers such as children, friends, church members or neighbors would be considered UMEs by VA.

If the surviving spouse has been rated "Housebound" or in the need of "Aid and Attendance," VA will allow deduction of all fees paid to a non-licensed in-home attendant as long as the attendant provides some so-called "medical" or "nursing" services for the disabled person. This means 2 or more Activities of Daily Living (ADLs). As an example, helping the care recipient shower and dress would be considered "nursing services" and counted as two ADLs. The overall payments for care may include Incidental Activities of Daily Living (IADLs) services such as cooking, laundry, and housecleaning so long as two ADLs are part of the care. The next section will help you give you a complete list of ADLs.

Activities of Daily Living and instrumental Activities of Daily Living

Activities of Daily Living (ADLs)
VA uses the terms "Medical Services" and "Nursing Services" and "Custodial Care" somewhat interchangeably. Generally, care involving two or more Activities of Daily Living is considered "Custodial Care." Once a medical need is established and 2 or more ADLs are part of a claimant's custodial care, the surviving spouse's ongoing care costs are considered Unreimbursed Medical Expenses (UMEs). UMEs can be deducted from income. This helps the claimant receive more of the applicable Pension maximum amount. We have taken rules from 38 CFR §3.352 and applied them to a more modern terminology of what is to be considered Activities of Daily Living. Here is our list based on the regulation.

  1. Assistance with bathing or showering
  2. Assistance with toileting and incontinence
  3. Assistance with feeding (having a need to be fed by someone else)
  4. Assistance with dressing or undressing
  5. Assistance with transferring in or out of a bed or chair
  6. Assistance with ambulating (walking)
  7. Assistance with keeping oneself ordinarily clean and presentable, including hygiene issues
  8. Assistance with frequent need of adjustment of special prosthetic or orthopedic devices which cannot be done without the aid of another person
  9. Having an incapacity (physical or mental) requiring care or assistance on a regular basis to protect the patient from hazards or dangers incident to his or her daily environment
  10. Is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less in both eyes
  11. Is a patient in a nursing home because of mental or physical incapacity
  12. Meets the criteria of being totally bedridden as defined in the regulation

As mentioned in the regulation, there does not need to be a certain number of these incapacities in order to determine a rating for aid and attendance. The rating service representative simply must determine from the evidence whether the claimant is so helpless as to require the regular aid and attendance of another person based on one or more of these conditions.

From our experience with the rating authority, the surviving spouse who is applying should exhibit the need for and be receiving at least two or more of the services from #1 through #7 above. If #8 through #12 are more relevant, only one of these need apply.

Instrumental Activities of Daily Living (IADL)
Here are common Instrumental Activities of Daily Living (IADLs). Services involving only IADLs are not considered unreimbursed medical expenses (UMEs). IADL services by themselves are not deductible expenses. IADLs can count toward cost of care if at least 2 ADLs are part of the care.


Applying Income, Assets and Medical Expenses to 12 Month Prospective Period

Understanding how VA applies income and medical expenses and assets in estimating and paying benefits for the first year is perhaps one of the most confusing aspects of applying for Survivor's Pension.

An initial or original application (claim) for Survivor's Pension is generally based on income estimates, asset estimates and medical expense estimates beginning the month of application and extending 12 months into the future. There may be some exceptions to this, but let's keep it simple at this point. Income, net-worth and medical expenses prior to application are not pertinent and are disregarded by VA. Many people make the mistake of listing medical expenses for previous months. Or they may list some sort of extraordinary income receipt prior to application. Or they may list assets they no longer have that were in place prior to application. Providing this information just confuses Pension management and could result in a denial.

The application is an estimate of the three factors above for the future 12 months starting from the month of application. Assets listed on the application are those that would apply to this same period of time. Finally, medical care and health insurance expenses that can be applied to offset income are only those that can be certified by the applicant to recur each month for the future 12 month period from the date of the application going forward.

General Medical Costs Eligible for the 12 Month Prospective Deduction
Only certain recurring, out-of-pocket – UNREIMBURSED – medical expenses will be considered by VA. Here are the ones most commonly used. Combined household medical expenses are used, not just those of the claimant.

  1. The monthly recurring out-of-pocket cost of long term care services for home care provided by professionals or family, independent living, assisted living, adult day services and nursing home services when VA determines that the services are deductible.
  2. The recurring out-of-pocket cost for health insurance premiums such as Medicare Part B, Medicare supplements, Medicare advantage plans, supplemental health insurance plans and long-term care insurance but not to include reimbursement policies such as AFLAC.
  3. The out-of-pocket cost for possible visits for medical treatment that can be proven that need to be performed on a regular basis. An example might be dialysis. Another example might be ongoing chiropractic treatments.
  4. The out-of-pocket cost for renting medical equipment on a monthly basis such as health monitoring equipment, hospital beds and so on.

If you can come up with any other recurring costs that are not reimbursed and are out-of-pocket – as long as you can prove that they will exist month to month – VA will probably accept them.

Medical Costs Eligible for Ongoing Receipt of Pension after Initial Application
After receiving the initial benefit, you may choose to submit evidence of medical expenses that are not recurring as well as actual evidence of all of the expenses that were used to estimate the benefit initially. This is important for several reasons.

  1. Often the recurring medical expenses that you estimated for the initial application were actually less than those you estimated. Unless you can come up with additional expenses that are allowable after the initial award, you may have a reduction in future benefits.
  2. Often the income that you estimate for the initial application may be less than your actual income for the period. Again, without offsetting medical expenses, you may see a reduction in future benefits.
  3. If your initial award is less than the maximum that was available, evidence of additional medical expenses will allow VA to give you a catch-up payment for those benefits that you missed.

You should use VA Form 21P-8416 Medical Expense Report to provide VA a full accounting of your one-time and ongoing medical expenses. The 8416 form should be accompanied by VA Form 21-4138 - Statement in Support of Claim, which is the standard communication form used by all claimants, mainly as a cover letter.

The list below shows many of the common allowable medical expenses, but this list is not all-inclusive. Any expenses are allowable that are directly related to medical care. These must be unreimbursed expenses paid out-of-pocket by the beneficiary and/or spouse. Remember, claims based on long term care expenses like home care, assisted living, and nursing home care are the most likely to succeed as these expenses are ongoing and significantly drain income and assets.


Medical Deduction Rules

Personal Care Arrangements
A personal care arrangement is a necessary part of an application for surviving spouses who have hired private care. VA does not care who provides the care services to the widow as long as it is a legitimate arrangement and money changes hands each month and is not secretly given back to the surviving spouse.

In order to initiate a claim for caregiver services provided to a surviving spouse by a member of the family or others, evidence of payment must be produced with the original application. Also there must be a rating for aid and attendance or the paid services of a member of the family or others are not deductible from the household income. Remember, the private caregiver must be providing at least two Activities of Daily Living as part of the overall care. The Claim Support Disc has a special form the private caregiver must complete for the surviving spouse to be part of his or her Survivor's Pension application. The surviving spouse's physician must also certify the claimant have a medical need for these services on VA Form 21-2680.

You may refer to the section above called Care Provider Services - Activities of Daily Living (ADLS) and Incidental Activities of Daily Living (IADLs) for more information.

Problems with Private Caregiving
There is a problem with these care arrangements. VA continues to audit a small percentage of Pension claims. The audit will require additional documentation to verify the actual costs and services provided. In the event of an audit, we believe to protect the individuals providing care as well as the professional providing the advice to surviving spouse and the family, there should be an appropriate care contract in place. In addition, members of the family or other informal caregivers being paid for care fall under the IRS domestic employee rules -- the so-called "nanny tax." Taxes need to be withheld and paid and a W-2 needs to be issued. This will also create a paper trail to verify that money is exchanging hands and legitimate services are being provided.

Establishing a formal paper trail has another advantage. Often, after these personal care arrangements are set up initially, the surviving spouse fails to pay the caregiver each month thereafter because money is coming in from the Department of Veterans Affairs. Why continue to pay when money flows in every month? This failure to pay is considered fraudulent and could lead to a retroactive denial of benefits and a demand from VA to repay all of the benefits from a certain previous date. By setting up a formal arrangement with the taxes being accounted for, the money must be paid every month. A formal arrangement creates the continuity of month-to-month payments that ensures the deduction for medical care can be claimed consistently. Without a proper paper trail, it may be difficult to prove that services were paid for. This could result in the benefit being denied retroactively and a demand for repayment.

The contract should also meet Medicaid rules in those states that allow personal care contracts for transferring assets to children in anticipation of Medicaid or for spend down for Medicaid. This is an additional benefit to setting up these personal care arrangements. In fact, if the arrangement set up for receiving the Pension benefit does not meet the contract requirements under the Medicaid rules in your state and an application for Medicaid is made at some future date, Medicaid will likely declare the money paid to the children a transfer for less than value. This will create a penalty for Medicaid because Medicaid will argue that the parents transferred the money to the children in a deliberate attempt to get rid of their assets to qualify for Medicaid.

This transfer for less than value problem would only present itself if excess income were being held over to future months. Money received and spent in the same month is not an asset for Medicaid purposes and the transfer for less than value rule would not apply. In the event money is being held over to the next month, you must be sure that you have the proper kind of contract in place in case you have to apply for Medicaid.

Giving the money back to the surviving spouse to pay household bills constitutes a gift under Department rules. Gifts are considered income under the rules. If you are ever audited and these gifts show up in the beneficiary's checking account, VA will count that as income and could come back and disqualify all benefits as well as demanding repayment.

You can pay some of their bills for them but you can't put the money in their account. Put the money into an account with only the caregiver's name on it and not the name of the veteran or the veteran spouse on the account. Use this account to pay bills if necessary. By the way, if VA assigns a fiduciary for the benefit award, the fiduciary service representative will require you to set up accounts according to the way Fiduciary Services requires it. This may be in contradiction to what we are telling you here. Don't come back and blame us if VA Fiduciary Services wants a different arrangement and a different contract. This might also become a dilemma for you under Medicaid. As far as a personal care attendant being a contractor and receiving a 1099 as opposed to being a domestic employee, caregivers are domestic employees. On the other hand, if the caregiver is indeed in the personal-care business and has other clients that the caregiver is servicing with care services, then the attendant can receive a 1099. Otherwise, if the caregiver only has the parent or relative as a client, they are considered a domestic employee under IRS rules and social security and unemployment taxes need to be withheld.

Medical Deduction Rules for Licensed Home Healthcare Services
The licensed personal care, nonmedical or professional home care company must be providing two or more of the services listed in the section entitled "Care Provider Services - Activities of Daily Living (ADLS) and Incidental Activities of Daily Living (IADLs)" above in order for the care expenses to be deductible. The surviving spouse's physician must also certify he or she have a medical need for these services on VA Form 21-2680.

As long as services are being provided from the aid and attendance criteria list, all reasonable fees paid to the licensed service for personal care of the patient and maintenance of the patient's immediate environment may be allowed. This includes such services as cooking, transporting, companionship, laundry and housecleaning for the disabled person.

For the purposes of the medical expense deduction, a licensed service refers to an individual licensed to furnish health services by the state in which the services are provided. Licensed health professionals may include home health care and private duty companies as well as:


Medical Deduction Rules for Assisted Living
It is generally accepted by the Department that an assisted living facility – or whatever it might be called in your state –licensed to provide assistance with the aid and attendance criteria in the section above, is eligible for the deduction for the room, board, and care from household income in order to meet the income test.

If there is no medical need for the aid and attendance of another person and the applicant is not receiving two or more of the services listed in the section entitled "Care Provider Services - Activities of Daily Living (ADLS) and Incidental Activities of Daily Living (IADLs)" above, do not bother to apply. Without these services, as far as VA is concerned, the assisted living is just another retirement living arrangement and is not eligible for the special medical deduction.

In order to receive a successful award, the assisted living must produce evidence it is providing two or more of the services in the criteria list. The surviving spouse's physician must also certify he or she have a medical need for these services on VA Form 21-2680.

Medical Deduction Rules for Nursing Homes
If a surviving spouse is in a skilled nursing home for a medical need as a patient or is a temporary resident, the out-of-pocket cost of the nursing is not automatically deductible from income and a rating for aid and attendance is not automatic. This is different for a veteran.

The surviving spouse's physician must certify he or she has a medical need for these services on VA Form 21-2680.

Surviving spouses in nursing homes can include VA Form 21-0779 REQUEST FOR NURSING HOME INFORMATION as part of their application. However, this form was really not designed for a surviving spouse. In these cases, we recommend using a Care Provider Statement.

Medical Deduction Rules for Independent Living
If a surviving spouse needs the aid and attendance of another person while residing in an independent living community, we have a procedure for you to follow in order to get an award. If there is no apparent need for aid and attendance, do not bother to make application as VA will not deduct expenses for independent living room, board, and the incidental services they provide such as medication management, pull cords, availability of staff, preparation and serving of meals, etc. Independent living services, alone, no longer satisfy VA requirements to be considered an unreimbursed medical expense (UME). These facilities do not employ licensed individuals trained to provide hands-on care services to their residents. In other words, independent living is not licensed to provide custodial care or medical services like assisted living or nursing homes.

Until recently (see VA Fast Letter 12-23 (David R. McLenachen, Director | Pension and Fiduciary Service | October 26, 2012), "custodial care" was understood to be the same as room and board (see M21-1MR at 43.h.) "…because the individual needs to live in a protected environment, all unreimbursed fees paid to the institution for custodial care ('room and board') … are deductible expenses."

However, as defined by Medicare, [and now by VA], "custodial care assists persons with activities of daily living (ADL). See e.g., Medicare Benefits Policy Manual, Chapter 16, section 110." As defined in VA regulations, ADLs are "basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet" (38 C.F.R. § 4.124a note 3). Therefore, to preserve the integrity of the Pension program, VA now considers a facility to provide custodial care only if it assists an individual with two or more ADLs. Accordingly, for Pension purposes, VA regulations are as follows:

• The cost of room and board at a residential facility is a UME if the facility provides custodial care to the individual, or the individual's physician states in writing that the claimant must reside in that facility to separately contract for custodial care with a third-party provider.
• A facility provides custodial care if it assists the individual with two or more ADLs.
• If the facility does not provide the claimant custodial care, or the claimant's physician does not prescribe care by a third-party provider in that facility, VA will not deduct room and board paid to the facility but will deduct the cost of any medical or nursing services obtained from a third-party provider.

In addition, VA does not consider emergency pull cords, 24-hour staffing, and locked exterior doors as a medical or nursing service.

In short, the following conditions must be met in order for Independent Living room and board to be a UME:

  1. The surviving spouse has needs for certain ADL (custodial care) needs which are beyond what the Independent Living community can provide. For example, assistance with bathing, dressing, hygiene, toileting, and walking,
  2. The surviving spouse hires additional care who provide for 2 or more ADL services. This can be contracted from the facility's contracted 3rd party care or contracted outside privately,
  3. VBA Form 21-2680 shows claimant has needs for 2 or more ADLs and earns the surviving spouse an aid and attendance rating,
  4. Physician certifies, in writing, the surviving spouse must reside at the Independent Living community to contract for the 3rd party care. Physician must specifically name and prescribe the Independent Living and the 3rd party care services for the claimant's well-being. This statement must be written somewhere on the VBA Form 21-2680 or on the doctor's letter head: "I, the signing medical practitioner, certify that ______________________ (claimant) must reside in ___________________________ (the Independent Living Community) to contract and receive _______________________'s (the Contracted 3rd Party Care Provider) assistance with their Activities of Daily Living (ADLs). I prescribe the custodial care outlined in the application the 3rd Party Care Provider will offer the claimant in that facility."
  5. Independent Living completes a statement – Independent Living Certification of Services
  6. 3rd Party Care Provider completes a statement – Care Provider Certification of Services.

If ALL of the above criteria are met, VA will deduct the Independent Living room and board AND the 3rd party care costs. If not, VA will only deduct the 3rd party care expenses. Use the Claim Support Disc and the checklist below to help you file this type of claim.

Sample Survivor's Pension Case
This case was designed to illustrate Survivor's Pension is totally dependent upon income and whether or not there are large offsetting and recurring medical costs such as home care or assisted living. It is precisely these types of cases that represent the majority of widow's receiving Survivor's Pension. In other words, most of those receiving Survivor's Pension qualify because of low income or because of substantial long term care expenses.

You will see below even though Beverly has a low income, it is still above the basic Survivor Pension threshold and without offsetting recurring medical costs and a medical rating, she will not receive Survivor's Pension. The case goes on to illustrate the power of using recurring medical costs that eventually allow Beverly to qualify.

Beverly is the surviving spouse of a Korean veteran who died three years ago. Because she is the surviving spouse of a qualifying veteran, Beverly believes she is eligible for Survivor's Pension. Beverly has not remarried and was married to her husband and living with him when he died. She is reasonably healthy, her gross income is $1,300/month and her unreimbursed, annualized medical expenses are a mere $1,800 each year. These expenses consist mainly of health insurance premiums. She files a claim for Survivor's Pension. Her claim includes a marriage certificate, her husband's death certificate and military records, and VA Form 21-534EZ. VA uses the information and calculates her possible benefit as follows:

  Surviving Spouse of a Veteran - No Large Offsetting Medical Costs

Total 12-month, future family income from all sources

$15,600

Less 12 months-worth, prospective, unreimbursed medical expenses

$1,800

Subtract 5% of basic MAPR for this category

$442

Medical Expenses Adjusted for Deduction

$1,358

IVAP (Income for VA Purposes)  (Future income less future medical costs)

$14,242

Single Survivor Death Pension MAPR with Aid and Attendance

$14,113

Less IVAP

$14,242

Calculated Yearly Pension Amount

$0

Monthly Pension Award (yearly divided by 12 and rounded down)

$0


Based on her total income and IVAP, her application for Survivor's Pension is denied.

A year and a half passes after the denial was received. Beverly's health has declined and she decides to move into a residential care home that provides assisted living. She needs help with dressing, maintaining proper hygiene, and supervision with her medications. She also desires the social stimulation of being around other people her own age. She finds a home in a residential neighborhood that will charge her $1,850 a month. Beverly's unreimbursed, annualized medical expenses with the additional cost of residential care now amount to a total of $24,000 a year. She files a new claim for Survivor's Pension with an aid and attendance allowance. Her claim includes a new VA Form 21-534EZ to give VA an updated look at her income, assets, medical expenses, and surviving spouse status. She also files VA Form 21-2680 completed by her doctor, a Care Provider Statement from her facility, and a paid invoice provided by the facility. Beverly does not re-submit her marriage certificate nor her husband's death certificate and military records. VA has these items already in their VA File. VA uses the information and process her claim as follows:

Surviving Spouse of a Veteran - With Large Offsetting Medical Costs

Total 12-month, future family income from all sources

$15,600

Less 12 months-worth, prospective, unreimbursed medical expenses

$24,000

Subtract 5% of basic MAPR for this category

$442

Medical Expenses Adjusted for Deduction

$23,558

IVAP (Income for VA Purposes)  (Future income less future medical costs)

$0

Single Survivor Death Pension MAPR with Aid and Attendance

$14,242

Less IVAP

$0

Calculated Yearly Survivor Pension Amount

$14,242

Monthly Pension Award (yearly divided by 12 and rounded down)

$1,176


This time, Beverly is granted benefits which pays her an additional $1,176 a month (tax free) and brings her total income to $2,487 a month. She now has enough money to cover the cost of her new living and care arrangement.

The Net Worth Limit

The Net worth limit for Survivors Pension is exactly the same as the net worth limit Veterans Pension. To learn more about this please visit the following page on this website veteransaidbenefit.org/what-is-the-asset-net-worth-limit-for-aid-and-attendance-pension.htm


Please refer to the table of contents in the top right column of this page for more topics on Benefits for Survivors of Veterans.