April 2019 Archives

Welcome to the April 2019 Issue

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We are pleased to submit the April 2019 issue of Electronically In Touch. This issue features curated articles for young lawyers, including how matrimonial law attorneys can assist their clients with financial advice, a comparison of the cryptocurrency regulations in the US, EU, and Asia, advice for lawyers who are thinking about making a career shift, tips for better and more comfortable networking, and the many ways in which young lawyers of all practice groups can serve veterans with their legal services. We hope you enjoy!

Electronically In Touch is a member driven publication. We welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life balance, and information regarding upcoming meetings and events. Please submit articles to Justin Batten at jwb413@nyu.edu.

Guiding Premarital Conversations about Money

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By: Justine Borer, Esq.

Newly admitted attorneys who work at firms focusing on matrimonial law receive, as a matter of course, requests for advice from clients who are considering marriage. In these situations, it can be helpful for the attorney to provide some basic, limited advice about practical steps a client may take to ensure that s/he and his/her potential spouse have reached a meeting of the minds about finances. Of course, in many cases, it will be appropriate and prudent for the client to seek the advice of a financial planner or other financial professional before marriage, in addition to seeking the advice of an attorney.

The first piece of advice a newly admitted attorney may give to the client is simply to engage in a conversation about money with his/her potential spouse. Many couples avoid conversations about money before getting married. Yet in O'Brien v. O'Brien, 66 NY 2d 576 (1985), the New York State Court of Appeals defined marriage as an "economic partnership." And issues regarding money, or poor communication about money, frequently cause problems in marriages.

It can be helpful for newly admitted attorneys who quickly become accustomed to frank discussions about money and financial issues to understand why clients might resist conversations about money with potential spouses. There are many possible explanations for why a client might sidestep conversations about money before getting married, including:

  • She believes her financial position is straightforward and does not require discussion.
  • He dodges many topics that would be best discussed before marriage, such as views about having children and plans to continue (or discontinue) working outside the home.
  • She believes that spending (and saving) habits will change over the course of a marriage, as income increases, making premarital conversations about money premature.
  • He believes that conversations about money are unromantic and that marital finances will naturally fall into place.
  • She is a poor communicator, or feels she lacks the skills to have these kinds of conversations.
  • He was raised not to talk about money, and views conversations about it as gauche.
  • She bristles at the idea of having to justify her financial habits to another person.
  • He is dishonest about his spending habits before marriage, and avoids frank conversations about money because he does not want to reveal how he plans to spend money after marrying.
  • She is quite concerned about her future spouse's financial habits, but is hesitant to bring up the issue, lest a discussion rock the boat.

All of these reasons for avoiding money conversations are common, some more so for younger couples. Many of the reasons are understandable, even for attorneys, who discuss financial issues as a matter of course. But an attorney should artfully underscore to his/her client that none of these reasons fully excuse the failure to have conversations about money before entering into an economic partnership. If a client approaches an attorney for advice about what to do before getting married, the attorney should emphasize that people who plan to marry must have at least one frank and detailed conversation about money before marrying.

Many newly admitted attorneys may believe that the process of preparing and executing prenuptial agreements provides couples with sufficient opportunity to discuss money before marrying. Unfortunately, this perception overestimates the kinds of discussions and information exchanges that prenups actually tend to require. To be sure, prenups can be a good way to begin conversations about marital finances. In New York State, the best practice is to include in a prenup a schedule of each party's assets and liabilities, meaning that each member of the couple will, at minimum, have a clearer picture of the other member's financial position. Prenups also spell out which assets are intended to be separate (that is, will continue to be the sole property of the spouse who entered the marriage with them, even after the marriage) and which are intended to be marital (the joint property of both spouses, and subject to equitable distribution at divorce). Prenups also force couples to consider the issue of financial settlement at divorce.

But it is important for newly admitted attorneys to know that prenups are by no means a panacea. Those who want to avoid talking about money before marriage can skirt the issue even if they execute a prenup. These agreements typically do not contain language about financial habits and values. During the process of the drafting of a prenup, a man may learn that his potential spouse has substantial assets, but he may not learn how s/he plans to use or manage his/her assets. A woman may learn that her potential spouse has significant debt, but she may not learn the speed at which s/he plans to pay down the debt. Prenups may provide the starting point for more nitty-gritty conversations, but, for many couples, negotiations about the terms of the agreement itself may be the sum total of pre-marital dialogue about money. For this reason, an attorney who is approached by a client considering marriage may want to do more than simply advise the client to execute a prenup.

So what additional type of counsel may a newly admitted attorney offer to a client who wants to have pre-marital conversations about money, and does not know where to start? The attorney may want to turn to a document that is required to be filled out and submitted to court in contested divorces in New York State: the Statement of Net Worth. This 25-page document, which can be found on the New York State Unified Court System website (courts.state.ny.us), requires declaring monthly expenditures in various categories, including housing, utilities, food, clothing, insurance, medical, education, recreation, taxes, financial obligations to former spouses and children from former relationships, loan payments, and business expenses. The Statement of Net Worth also requires declaring income, assets, and liabilities. After familiarizing him/herself with the Statement of Net Worth, the attorney can provide the client with an overview of the categories and types of expenses, assets, liabilities, and incomes that he/she may want to discuss with his/her potential spouse before marrying.

It is possible for a newly admitted attorney to provide more specific guidance about financial questions couples should explore before marriage, because they are common sources of tension after marriage. Many of the questions are most applicable to younger couples, and some are more applicable to older couples.
Questions that all couples should ask each other:


  • What kinds of financial decisions am I comfortable with my spouse making on his/her own, and what kinds do I want to discuss?

  • Which of my current expenses would I be able to give up without too much pain, and which would be difficult to part with?

  • If my spouse has significant assets, how do I view my role in drawing on those assets after we marry (and vice versa)?

  • If my spouse has incurred debt, what do I believe is my share of the responsibility for paying back that debt after we marry (and vice versa)?

Questions primarily for younger couples:


  • In general, what mortgage terms would be acceptable to me? Would I feel comfortable buying real property if I only had enough money for a small down payment? If not, how much of a down payment would I need to feel comfortable buying real property?

  • How would I feel about incurring joint credit card debt? Is there a maximum amount of debt I would be able to incur before the debt caused anxiety?

  • Do I plan to work outside the home after the marriage? If not, under what financial circumstances (if any) would have to occur before I would be willing to change my mind?

  • How much do I plan to save for retirement? How do I plan to save for retirement?

  • How much do I plan to save, more generally? Will a certain portion of my income be earmarked for savings, and if so, approximately what portion?
  • Do I want to have children? If so, under what circumstances would I consider sending my children to private schools?

Questions primarily for older couples:


  • What are my financial obligations (either legal or informal) to ex-spouses and children from previous relationships?

  • How do I anticipate dividing expenses with my spouse after marriage? If I am relocating to my spouse's home, what is my responsibility regarding the maintenance of the home (and vice versa)?

  • When do I plan to retire? How much money will I expect to have saved by retirement? How do I anticipate that my habits regarding spending will change once I retire?

  • How will my estate be distributed at my death?

These sets of questions are by no means exhaustive. But the answers to them can be revealing. If a couple fundamentally disagrees about the answers to many of them, at the very least, the couple should discuss the questions further to try to reach some kind of consensus. Even spouses who love each other deeply may find it unbearably difficult to maintain a marriage if, for example, one spouse is not comfortable maintaining credit card debt, the other is comfortable with significant credit card debt, and credit card debt has begun to accumulate.

Because of their limited experience, many newly admitted attorneys are quite concerned about providing legal advice, and with good reason. But it is possible for such attorneys, without overstepping their bounds, to provide basic, limited advice about how to discuss finances to clients considering marriage. A client considering marriage may benefit immensely from a brief discussion about his or her planned marriage with a newly admitted attorney, if that attorney understands the importance of potential spouses discussing finances before marriage, the reasons why clients might resist such conversations, the prenup's limitations in facilitating those conversations, and the value of couples disclosing incomes, assets, liabilities, and expenses, and addressing specific financial questions, before marriage. In turn, the awareness of this information can only help a newly admitted attorney to practice law.

By: Emily A. Georgiades, Esq.

As virtual currency trading platforms are becoming more popular worldwide, there is a call for global regulation. The trend appears to be that nations around the world are slowly beginning to accept virtual currency trading and mirroring their legislations to this effect. In particular, the United States, Malta, Cyprus, Japan, and Singapore have issued regulations and guidelines on how to treat cryptocurrencies (which is a type of virtual currency) and whether or not licenses are required for exchanges consisting of trading virtual currencies.

U.S. Regulations

Under U.S. law, cryptocurrencies are regulated as both currencies and securities. Within the U.S., there are both Federal and State laws to consider for securities regulations (the latter being "Blue Sky laws"). Many U.S. states have already issued their own laws regulating blockchain and cryptocurrencies. For example, Arizona passed the Arizona House Bill 2417 in 2017, regulating blockchain and smart contracts. In addition, on a Federal level, the Uniform Law Commission drafted the Uniform Regulation of Virtual-Currency Business Act (URVCBA) on October 9, 2017. The URVCBA serves as a guidance to the state regulators in passing regulations. More specifically, the URVCBA is a statutory structure that addresses "virtual currency business activity" which encompasses:


  1. the exchange of virtual currencies for cash, bank deposits, or other virtual currencies;

  2. the transfer from one customer to another person of virtual currencies; or

  3. certain custodial or fiduciary services in which the property or assets under the custodian's control or under management include property or assets recognized as "virtual currency."

This includes cryptocurrencies. In the US, regulations may apply to cryptocurrencies depending on how the cryptocurrency functions in the market. For example, if it operates as a fiat currency then it may fall under the regulations of the Bank Secrecy Act and FinCEN is the enforcing agency. If a particular cryptocurrency operates as a security it would fall under the ambit of the Securities Exchange Commission and FINRA. The primary securities legislation is the Securities Act of 1933.

Since 2015, the CFTC ("Commodity Futures Trading Commission") has been regulating bitcoins as a commodity. As such, bitcoins fall under the ambit of the Commodity Exchange Act. On October 17, 2017, the CFTC issued a Primer on Virtual Currencies which states that there is no inconsistency between the SEC's position that some virtual currencies can be securities and the CFTC's position that virtual tokens may be commodities or derivatives contracts depending on the facts and circumstances. They add: "The CFTC looks beyond form and considers the actual substance and purpose of an activity when applying the federal commodities laws and CFTC regulations."

E.U. Regulations

Mirroring the American CFTC regulations, the E.U. has issued an Advice for its Member States through its financial regulatory agency, ESMA (European Securities & Market Authority). On January 9, 2019, the European Securities and Markets Authority (ESMA) published its Advice to the European Institutions regarding, inter alia, crypto-assets. There is an ongoing global conversation on the nature of virtual currencies and whether or not they qualify as securities. ESMA's Advice is essentially opening up a dialogue between the EU Member States to adopt regulations for crypto-assets. Some crypto-assets, e.g. those with profit rights attached, may qualify as transferable securities or other types of MiFID financial instruments. However, Member States have defined the term "financial instrument" differently, hence creating challenges to both the regulation and the supervision of crypto-assets.
In October 2018, the Financial Action Task Force (FATF) adopted changes to its Recommendations and Glossary, on items such as "virtual assets" and "virtual asset service providers", to explicitly clarify that the Recommendations apply in the case of financial activities involving virtual assets. The FATF Recommendations also set out comprehensive requirements for combating money laundering and terrorist financing, including those that make use of virtual assets.

Although guidelines are provided on a macro level in the E.U. (through regulatory bodies such as ESMA), in the E.U., virtual currency trading regulations are left to the individual Member States to devise. In Cyprus, for example, cryptocurrency trading is presently unregulated. Other EU Member States, such as Malta, have issued regulations to regulate cryptocurrency trading. There is also the establishment of Electronic Money Institutions ("EMI licenses"), which allows for cryptocurrency trading. Member States such as Estonia have been issuing such licenses and are allowing for cryptocurrency trading. Given the terminology of "money" versus "currency" (which is very different) and allowing for cryptocurrency trading under such licenses, it is evident that we are beginning to see an analytical trend much like in the U.S. - in which the manner of operation of the cryptocurrency itself is being taken into consideration to determine which regulations, if any, apply. If cryptocurrencies are considered "money" or even operate as fiat currency then we may very well see such trading come within the ambit of banking regulations with the E.U.

Asian Regulations

Since Asia is a vast continent within which to examine the virtual currency legislation of each nation, we will consider only Japan and Singapore for the purposes of this article. Interestingly, Japan was the first country to adopt a national system to regulate cryptocurrency trading. It is therefore no wonder why Japan is the biggest market for bitcoin, which is one of over a thousand types of virtual currencies. In Japan, exchanges are legal if they are registered with the Japanese Financial Services Agency ("FSA"). Moreover, Japan has implemented amendments to the Payment Services Act to now require cryptocurrency exchanges to be registered with the FSA in order to operate. Given the popularity of cryptocurrency exchanges, the Japanese Virtual Currency Exchange Association ("JVCEA") was established to provide advice to unlicensed exchanges and promote regulatory compliance. The aim of these implementations is to promote a safer environment with which to trade cryptocurrencies and help curb financial crimes.

Singapore takes a "soft approach" to cryptocurrency trading. Although cryptocurrencies are not considered legal tender in Singapore, they may be legally and freely traded on exchanges without the need for registration of these exchanges. In January 2018, the Monetary Authority of Singapore ("MAS") issued a press release warning the public of the risks of crypto speculation. The MAS FinTech chief, Sopnendu Mohanty, expressed that there is a need for further regulation to help ensure that cryptocurrencies are not used for financial crimes. To this effect Deputy Prime Minister Tharman Shanmugaratnam stated that cryptocurrencies are subject to the same AML and CFT measures as fiat currencies. This is also in line with the U.S. and E.U. regulations.

Conclusion

The common thread amongst all nations leaning towards regulation of virtual currencies is the anonymous and decentralized nature of virtual currencies and the need to regulate its exchange in order to protect the public from money laundering and other financial crimes. If one were to project where the regulations are headed in the future, one could see that more and more countries will be implementing virtual currency regulations and also regulations to tax the income derived from such trades. Already, in the more progressively regulated countries (such as the U.S. and Japan), tax regulations have been implemented with regards to profits gained from cryptocurrency trading. This is in part to due the fact that cryptocurrencies are, under certain circumstances, seen as securities. As cryptocurrency trading becomes more prevalent and more regulated globally, this may open the door to more Initial Coin Offerings. Although such regulations may still be deemed just the beginning, it is easy to see how more countries will follow suit in passing very similar legislation to accommodate this ever-growing field.

Emily A. Georgiades, Esq. is a member of the New York State Bar, the Bar of England & Wales and the Cyprus Bar Association. She is a business lawyer with a Master of Laws in Corporate, Banking and Finance Law from Fordham University School of Law, was a Deputy General Counsel of a business consulting firm in NY and teaches an advanced course in Business Law at Queens College in New York. Emily can be reached at Emigeorg@gmail.com.

By: Jennifer Bergenfeld, Esq.

Here are some rules of the road for legal careers. I myself have not followed a straight path with my career. However, like other lawyers, I have always ended up on the right side.

Who is driving?

You are the driver of your own career. It may be a different vehicle at different stages in your life. Being a managing lawyer is like driving a bus with clients and staff as the passengers. To drive commercial vehicles, you need a separate license. Likewise, for patent law, you need different training, and each state has its own license. Whatever type of law you want to practice and whichever role you seek, you need experience and credentials. It is your decision.

Don't Stop Short

I wish all lawyers had more confidence in themselves and viewed their choices as plentiful, not limiting. The first few years of any career can be discouraging, but the road is paved ahead. You cannot rely on someone else to drive your career to success. Ambition is personal. Seek out those who are encouraging. Advancing your career in the law often means fastening your seatbelt and getting into that left lane.

Signal to Move

You by no means have to stay in the one legal area in which you began working straight out of law school. Shortly after graduation from law school myself, I needed some time, and chose to work for a political campaign of a candidate who had been a prominent lawyer. This was a meaningful experience, and ended up solidifying my interest in corporate and regulatory law. My transition entailed networking with prior Wall Street contacts, which helped make my lane change from politics into corporate and regulatory law a far smoother one. Another example is a friend who went from a corporate law firm partnership to real estate and a solo practice. He reached out to everyone he knew, including his coop board and former real estate clients. Such signaling efforts resulted in a successful lane change. Your first, second, or even third jobs do not have to limit you, and you can switch to another industry just as soon as you are ready to signal your way into another lane.

Shifting Gears

When you are going from a law firm to in-house or a governmental role, you will undergo change. The new setting is not the only thing to adapt to. You also need to change your legal mindset. My mentor moved from in-house to private practice and back and forth. His flexibility is something to admire. Most recently, a judge for whom I clerked during law school retired to assume an alternative dispute resolution practice after receiving commendation for his mediation skills. This is a lesson in being able to do something well and changing settings. If you are ready to shift gears into another role or mindset, there are plentiful opportunities to do so, and many leaders in their fields have done so.

HOV Lane or Park and Ride

Sometimes, you need to find another way of furthering your career. Maybe you want to take a break or try something new. You can take comfort in the story of a friend I recently advised on her legal career. After a decade of managing her own firm, she was unsure of whether to expand her practice or merge with another law firm. A day or two later, I received a call for an assignment that required finding a colleague in a particular practice area. The only person I knew with such expertise was that same friend. Now, we have three engagements that we are working on together. Sometimes, it makes sense to park and let someone else drive; you will take the journey together. Carpooling and collaborating can sometimes lead to even greater success than working alone.


Jennifer Bergenfeld is an experienced deal wrangler. She focuses her practice on corporate and securities law, specializing in transactions, contract negotiations and regulatory/governance advisory for financial institutions. She holds a J.D. from the Benjamin N. Cardozo School of Law, an M.B.A. and M.A., from New York University, having served as professor of business law/ethics at the Stern School of Business, a Chartered Regulatory Counsel designation and a B.A. from George Washington University. In her free time, Jennifer conducts legal training and dedicates pro bono legal services to local nonprofits and socially responsible startups. She is also a cat rescue volunteer, with help from her family.

Making Networking More Comfortable

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By: Leona S. Krasner, Esq., MBA

The very concept of networking can make attorneys cringe a little. After all, law school does not always equip us with the full ins and outs of the networking process. Fortunately, the best ways to leave a great impression aren't terribly complicated.

Rule number one is to be as genuine as possible. Don't try to be someone you're not as you are shaking hands and getting to know your peers amidst the hors d'oeuvres. Instead, if you like someone's shoes, say so! If it's a beautiful day outside, mention it!

Rule number two always try to put forth a positive attitude. First impressions are key, and people you meet are unlikely to desire to do business or even pass referrals to negative people. So check any negativity at the door. If, for example, the networking event follows a panel that you thought was rather boring and another attendee asks how did you like the panel, emphasize something you did enjoy about it.

Rule number three is to always be looking to add value. The first way you can do so is by truly getting to know the other person. Ask them questions so that they end up speaking more than you do. There's no better compliment to a person than showing that you want to know more about them. To deepen the conversation, focus on asking the book report questions: who, what, where, when, why, and how, rather than questions that require a yes or no answer. This way, you will be able to find out more, relate better, and ultimately give more value. In addition, constantly keep an ear out for how you can help - whether by suggesting the value of a library card, sending them to your beloved eye doctor, or even sending them a direct client referral!

There's an excellent proverb that goes "givers gain." The best way, I have found, to get referrals and grow your own business is by helping other businesses grow. Whether by introducing referral partners, such as wealth managers and accountants, who both tend to target the same individuals, or sharing helpful resources, seek to genuinely help the person with whom you are speaking.

Finally, rule number four is to look to keep in touch after the networking event has passed. Either the evening of the event or the morning after, send each person with whom you spoke an email letting them know how nice it was to meet them, and how you will look to help them in the days ahead. For those individuals you especially liked, ask to schedule a tea or coffee meeting to discuss how you two can help grow one another's businesses. The keys are to be genuine, proactive, and to be seen to add value.

Leona Krasner is Managing Partner of the matrimonial and mediation law firm Krasner Law, PLLC. When not practicing law, she also provides bar exam and coaching to help her clients achieve their exam and career goals. Leona is a proud member of the New York State Bar Association, and is Chair of Communications of the Women in Law Section, and Editor of "Electronically in Touch," a publication of the Young Lawyer's Section. When not lawyering or tutoring, Leona enjoys putting on concerts for children through her nonprofit Tunes for Tots & Teens.

By: Benjamin Pomerance, Esq.

It all starts with a question: "Have you, or a member of your immediate family, ever served in the United States military?"1 Such a query deserves a place in the intake process for every law firm, every legal services organization, and every government agency in the nation. Providing the most comprehensive assistance possible for all clients demands the presence of this question. Without asking it, an entire universe of programs and services remains closed to your clients, including those clients who are fully eligible to receive some of these benefits.

Yet what happens when a client responds to this question by saying "yes"? What can you do to address the legal needs, and the unique statutes impacting those needs, when your client is a veteran or a veteran's immediate family member? Chances are, your legal practice is not focused on Veterans' Law. For more than a century and a half, a federal statute capped attorneys' fees at ten dollars in all cases brought before the United States Department of Veterans Affairs (VA), strongly dissuading lawyers from representing veterans and their family members in these matters.2 Even after this law was finally amended, permitting attorneys to start charging "reasonable fees" in VA appellate cases in 2007,3 attorneys have not exactly entered this field in droves.4

Still, attorneys possess the ability to provide substantial assistance to veterans and their families. Legal problems that veterans and their family members confront overlap with many more "traditional" practice areas, ranging from health law to elder law to consumer protection law and personal injury law. Practitioners in all of these areas and more can positively transform the life of a veteran or a veteran's family member by knowing some key concepts and using these provisions to advocate zealously on your client's behalf. The subsequent pages of this article provide a summary of several of these concepts that can help you provide the best possible legal service to your clients who swore to defend our nation and the values that we cherish.

Eliminating Myths

Myths run rampant concerning the laws regarding veterans and their families. Typically, these myths lead to veterans and their family members never applying for potentially life-changing benefits and services that they have earned. This section describes five of the most common fables that you may hear from veterans and their family members if they come to your office, and provides the ammunition to counter these myths with beneficial realities.

a. "I'm not a veteran"

Plenty of individuals believe that they do not qualify for veterans' benefits and legal protections because they never served in combat. Others feel that they do not qualify because they served during an era when the United States was not at war. Still others believe that they are not veterans because they "did not serve in the military long enough." Another group feels that they are not veterans because their character of discharge from the military was "general under honorable conditions" rather than "honorable."

All of them are wrong. All of these individuals are veterans who are leaving potentially life-changing benefits unclaimed for themselves and their family members. Add to this equation all of the demographic groups who commonly do not self-identify as "veterans" -- including female veterans and veterans who identify as lesbian, gay, bisexual, transgender, queer or questioning, intersex, or asexual -- and one can only imagine the millions of dollars in veterans' benefits that go unclaimed nationwide every year.5

Under federal law, a veteran is "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable."6 No requirements for combat service or wartime era service. No requirements for a specific length of time on active duty. No prohibition for individuals with a "general discharge under honorable conditions." As long as an individual served on active duty in the Army, Navy, Air Force, Marine Corps, or Coast Guard, or the commissioned officer's corps of the Public Health Service or the commissioned officer's corps of the National Oceanic and Atmospheric Administration, then that individual is a veteran under federal law.7

Of course, certain benefits have more exacting criteria. Yet when it comes to starting the conversation about whether the client in front of you is a veteran, and thus potentially eligible for veterans' benefits, the criteria described in the preceding paragraph are the only threshold requirements that exist.

b. "I lost my discharge paperwork, so I can't apply for benefits"

Federal law saddles the VA with a statutory duty to assist claimants.8 Part of this duty to assist includes an obligation to help claimants develop their claims for benefits.9 These claim development requirements include the responsibility of tracking down all federal records that are germane to the claimant's case.10

Military discharge paperwork is a federal record. Thus, the VA is obligated by federal law to find a veteran's discharge records and add them to a claim. No prospective claimant should ever refrain from filing for benefits because discharge paperwork is missing. The VA, as part of their statutory duty to assist, is required to find that discharge paperwork for the claimant.

Other commonly useful federal records that fall within the VA's duty to assist include military medical records, military documents that prove a veteran's service in a specific geographic location at a particular time, and medical records from the veteran's treatments at VA facilities. No claimant should ever shy away from filing a claim because any of these frequently used documents are not in the claimant's possession. He or she should file the claim, and let the VA carry out its statutory responsibilities of locating these federal records on the claimant's behalf.

c. "I only served in the National Guard. I'm not eligible for any benefits."

It is true that service in the National Guard generally qualifies as "active duty for training purposes," not "active duty," and thus typically does not meet the federal definition of the word "veteran" as described above.11 However, the inquiry should not end there. National Guard members commonly are called up to active duty service. If the individual sitting before you ever was activated in such a manner, and received a discharge from this service under conditions that were not dishonorable, then that person is a veteran under federal law, and the conversation about veterans' benefits can -- and should -- begin.

Furthermore, a National Guard member who was never activated to federal service may still be eligible for disability compensation payments from the VA. If a National Guard member is injured "in the line of duty" while serving with that individual's National Guard unit, then this National Guard member is likely eligible for tax-free disability compensation payments for that injury.12 This includes disabilities caused by injuries sustained while an individual is on the way to or from National Guard duty.13 For instance, if an individual is in a car accident while driving to a drill weekend location, and is injured in that car accident, this is deemed to be a "line of duty" injury. That National Guard member is therefore eligible to receive disability compensation from the VA for any disabilities caused by the injuries from that car accident.

d. "I filed a claim for benefits before, but I was denied. I'm not allowed to file again."

Denials of veterans' benefits are rarely set in stone. Instead, veterans and their family members have significant appellate rights, both administratively and judicially, which they can exercise if an initial claim is improperly denied.

At the VA, for instance, a veteran or veteran's family member may file a Notice of Disagreement (VA Form 21-0958) within one year of receiving the VA's decision in an initial claim for benefits.14 If the VA continues to disagree with the claimant's position, then the VA will respond by issuing a document called a Statement of the Case.15 The claimant can then respond by filing a VA Form 9 to establish a formal appeal within sixty days of receiving the Statement of the Case.16 As of this writing, the VA is currently revamping its administrative appeals system to offer various options to a claimant who wishes to appeal an initial decision, the impact of which is designed to improve the "user experience" for veterans and their families pursuing appeals.17

Beyond this, a veteran or family member who remains convinced that the VA's decision is incorrect even after pursuing the administrative appeals avenue may bring a case before the United States Court of Appeals for Veterans Claims.18 Established under Article I of the United States Constitution, this court maintains exclusive jurisdiction over cases concerning VA benefits. A veteran or family member has 120 days from the date of the VA's last administrative decision to file a Notice of Appeal for the Court of Appeals for Veterans Claims19 If a veteran or family member remains dissatisfied with the decision of the Court of Appeals for Veterans Claims, further appeals can be pursued to the Federal Circuit, and even to the Supreme Court.20

e. "I get all of my medical care at the VA hospital. They'll make certain that I receive all of my veterans' benefits."

This statement sounds perfectly logical, but is incorrect due to the structure of the VA. The VA is comprised of three branches -- the Veterans Health Administration, the Veterans Benefits Administration, and the National Cemetery Administration -- that are notoriously uncommunicative with one another.21 Thus, a veteran who receives medical care at a hospital or other facility operated by the Veterans Health Administration will not automatically receive benefits from the Veterans Benefits Administration.22 Even if a veteran has a medical condition that is linked to that veteran's military service, a Veterans Health Administration employee is not obligated to contact the Veterans Benefits Administration on that veteran's behalf. 23 This underscores the importance of never assuming that someone else is taking care of a veteran's application for benefits, and always being proactive in preparing and filing the proper paperwork with the Veterans Benefits Administration.

With these five common myths clarified, we now turn to an overview of some of the most common benefits, programs, and services for veterans and their family members with which attorneys can assist.

Disability Compensation

If an employee is injured on the job, chances are that the employee will try to establish a claim for worker's compensation payments. If a military member is injured while on duty, the federal government offers a type of worker's compensation structure for that individual to receive tax-free payments and other benefits in recognition of the physical and/or mental harm caused by this individual's service to the nation.24

No income barriers to disability compensation exist.25 A veteran could be a millionaire and still receive financial compensation from the federal government for injuries incurred or worsened by that veteran's military service.

A veteran whose disability was "at least as likely as not" caused or exacerbated by events in military service is deserving of disability compensation.26 If the VA determines that a claimant possesses a disabling condition that is "at least as likely as not" linked to military service, then the VA will assign that claimant a disability rating between 0% and 100%, based on specific criteria that describe the requirements for each level of each type of disability.27 A veteran receiving a 0% rating can receive free VA medical care for that service-connected disability, but no financial compensation.28 A veteran receiving a rating of 10% or higher receives monthly payments from the VA in addition to the free VA medical care for that disability, with the amount of the payment increasing as the percentage rating grows higher.29

Veterans with a disability rating of 30% or higher are eligible, through the filing of a form with the VA, to receive additional money from the VA if they have dependents living in their household.30 Veterans with a rating of 50% or higher are eligible for free medical care administered by the VA's healthcare system for all conditions -- not just the condition(s) for which the veteran is service-connected -- other than dental care.31 A rating of 70% or higher earns free residential skilled nursing care at any State Veterans Home for the veteran and for the veteran's spouse.32 A 100% rating, the highest rating that the VA will grant, earns that veteran all of the previously mentioned benefits, as well as free dental care from the VA and the ability to shop in the commissary and exchange facilities on military bases, a privilege typically reserved to military retirees.33

If your client's service-connected disabilities prevent your client from gaining steady employment, it is possible to obtain benefits at the 100% rate even if he or she does not receive a 100% rating outright from the VA. Through a concept known as "individual unemployability," the VA offers full payment and all ancillary benefits at the 100% rate for a veteran who cannot obtain and maintain substantial gainful employment, and who has either one disability rated at 60% or higher or multiple disabilities with at least one disability rated at 40% and a combined rating of 70%.34 "Substantial gainful employment" is a pivotal phrase in these cases. Denials of individual unemployability on the basis that the veteran is still fit to perform "odd jobs" or "marginal employment" do not comport with federal law; any decision containing such reasoning needs to be appealed.35 Likewise, the VA must not speculate that a veteran could potentially perform some job in some industry somewhere even though the chances of the veteran actually obtaining that job are slim. In the words of one federal case whose statements remain valid law in this area:

It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.36


Often, an advocate's toughest challenge is establishing the nexus between a veteran's current disability and that veteran's prior military service. In such situations, the VA's statutory duty to develop the case in the claimant's favor (discussed above) becomes vital, as the VA is obligated to track down all federal documents pertinent to the veteran's claim, including military medical records and VA treatment records.37 Failure by the VA to properly develop a claim is, as noted above, a legal error that should be appealed.

Additionally, the VA presumes that a nexus exists between certain disabilities and the veteran's military service if the veteran served in a certain place during a certain time. For instance, the VA presumes that veterans who served "boots on the ground" or aboard vessels in the waterways in the Republic of Vietnam (and certain other areas of Southeast Asia) during the Vietnam War were exposed to the herbicide Agent Orange.38 Consequently, any veteran who served in these areas during the Vietnam War for any length of time automatically receives a presumption from the VA that certain disabilities are service-connected.39

A similar presumption exists for veterans who served at Camp Lejeune between August 1953 and December 1987 and suffer from any one of a number of conditions because of the contaminated drinking water that existed on this base during this time period.40 The VA recognizes other presumptions for certain medical conditions for veterans who were prisoners of war,41 and other presumptions for medical conditions for certain veterans who were exposed during to ionizing radiation,42 mustard gas or lewisite,43 or toxic smoke and fumes from Gulf War Era burn pits.44 One condition -- amyotrophic lateral sclerosis, better known as "Lou Gehrig's Disease" -- is presumed to be service-connected for all veterans, regardless of when and where they served.45

Lastly, veterans and their advocates frequently leave money on the table by neglecting to file claims for the full range of the veteran's disabilities. For instance, imagine that a veteran falls during a training exercise while on active duty, injuring that veteran's left knee. Because of the constant pain in that veteran's left knee, the veteran begins heavily favoring the right knee when the veteran walks from place to place. Over time, this added stress on the right knee causes the right knee to become injured and chronically painful, too. In this situation, the veteran should file not only a claim for the left knee injury caused by the fall while on active duty, but also for the right knee disability as a condition that is "secondary" to the service-connected left knee injury.46

This theory even extends to two disabling conditions that are rarely compensated by the VA: alcoholism and/or substance abuse.47 If a veteran is diagnosed with post-traumatic stress disorder (PTSD) or a comparable mental illness, and that condition is linked with trauma that the veteran experienced in the military, then the veteran can receive disability compensation for that condition.48 If the veteran's PTSD or comparable mental health condition is at least as likely as not the cause of the veteran's alcoholism or substance abuse -- for instance, the veteran with PTSD who uses alcoholism or dugs to dull the mental anguish of constant flashbacks of traumas experienced while in the military -- then the veteran can receive additional disability compensation for the alcoholism or substance abuse as a condition that is "secondary" to that veteran's service-connected PTSD or other mental health condition.49

Personal Injury Cases Against The VA

The VA's Veterans Health Administration (VHA), like any other healthcare system, is susceptible to lawsuits for committing medical malpractice. Unlike private sector healthcare systems, however, the VHA is protected by the Federal Tort Claims Act (FTCA), which imposes additional hurdles for plaintiffs seeking to sue for damages.50

Before a plaintiff may sue the VHA for malpractice, the plaintiff must first present an administrative claim by filing a completed Standard Form 95 with the VHA within two years after the alleged negligence occurred.51 After receiving the administrative claim, the VHA then is granted six months to conduct an internal investigation into the allegations stated in the claim. If the VHA denies the administrative claim, then the plaintiff has two choices: request a reconsideration of the denial or file a lawsuit against the VHA in federal court. If the plaintiff does not file in federal court within six months of the VHA's denial, then the malpractice case will be time-barred, and the federal courts will not hear it.52

However, Title 38, Section 1151, of the United States Code offers injured veterans another opportunity to receive compensation from the VHA. A veteran may file a claim with the VA under Section 1151, using the same forms that a veteran would use for a traditional disability compensation claim, to seek compensation for injuries caused to the veteran by VHA medical personnel.53 In a Section 1151 claim, a veteran must prove (a) that the VHA engaged in conduct below the accepted standards of medical care that proximately caused or exacerbated the veteran's injury, and (b) that the new or worsened disabling condition was not a reasonably expected outcome or a reasonably predictable complication of the medical treatment that the VHA was providing to the veteran.54

A veteran may prevail in both a Section 1151 claim and a medical malpractice lawsuit against the VHA for the same injury.55 However, winning both cases rarely results in a complete double-payment to the veteran from both the successful claim and the successful suit. For example, if a veteran wins a lawsuit against the VHA and then subsequently wins a Section 1151 claim for the same disabling condition, the VA typically must withhold the veteran's Section 1151 payouts until the total amount of the financial judgment in the lawsuit -- loss of earning capacity, pain and suffering, attorneys' fees, court costs, etc. -- is offset.56

Non-Service-Connected Pension

Certain veterans with low household incomes are eligible to receive a tax-free monthly payment from the VA known as a "non-service-connected pension."57 Unlike disability compensation, non-service-connected pension does not require the veteran to prove any connection between the veteran's disabilities and events that occurred while the veteran was serving in the military.58 Instead, the VA focuses primarily on whether the veteran has a disability -- regardless of the cause of that disability --and whether the veteran's income and assets falls below certain thresholds.

Many non-combat veterans improperly assume that they are ineligible for pension benefits because the VA limits this benefit to "wartime veterans." However, "wartime" service is not equivalent to combat service.59 Any veteran who serves on active duty for at least one day during a period when the United States is at war qualifies as a wartime veteran, regardless of whether that veteran ever served in a combat zone.60 Title 38, Section 3.2, of the United States Code of Federal Regulations provides the beginning and ending dates for every wartime era in the nation's history. By way of illustration, Section 3.2 states that the Persian Gulf War began on August 2, 1990, and continues through the present day. Therefore, any veteran who served on active duty between August 2, 1990, and the present day is a wartime veteran, irrespective of whether that veteran served in combat in the Middle East or whether that veteran spent that active duty service on a military installation in the United States.61

The disability requirements for pension eligibility are less stringent than many veterans believe. The VA automatically presumes that any veteran age 65 and older meets the disability requirements for pension eligibility. 62 An equivalent presumption exists for veterans receiving Social Security Disability, Supplemental Security Income, or skilled nursing care in a nursing home.63 Beyond this, any veteran who can prove the existence of a disability that is "permanent" or "static" should have no problems satisfying the disability eligibility criteria in a pension claim.64

More challenging issues arise when considering the income and assets requirements for pension eligibility. On October 18, 2018, the VA implemented new regulations allowing the agency to scrutinize all asset transfers within the three years prior to a pension claim's filing date, and to penalize claimants whom the VA deems to be "hiding" assets to qualify for pension eligibility.65 Currently, any veteran with personal assets valued at more than $127,061 is ineligible to receive pension payments from the VA.66 Likewise, a veteran whose annual countable income exceeds the threshold set by Congress -- presently established at $13,535 for a veteran living alone, with slightly higher amounts for veterans with dependents in the household -- cannot receive this benefit.67

However, these calculations are not as straightforward as they initially appear, leading to some good news for claimants. When evaluating a claimant's assets, the VA cannot count the value of the claimant's primary residence and a "reasonable lot area" surrounding the primary residence -- typically defined as two marketable acres of land -- as part of the claimant's total assets.68 Nor can the VA count the value of any of the claimant's vehicles that are "necessary" for transportation for members of the claimant's household, or the value of any basic "effects" of the household -- simple furnishings, utensils, appliances, etc. -- in the claimant's assets calculation.69 These restrictions typically increase the number of claimants who are able to qualify for this benefit, much to their surprise.

A comparable opportunity exists for veterans to meet the household income restrictions for this benefit. If a claimant has medical expenses that are not covered by insurance companies, the claimant can subtract these unreimbursed medical costs from the claimant's total annual income.70 If the difference between the claimant's annual income and the claimant's unreimbursed medical expenses results in a number below the income threshold, then the claimant will meet the limited-income qualifications for this benefit.71

Additional tax-free money is available for veterans who meet all of the criteria for a non-service-connected pension and are either medically confined to their residence or require assistance with activities of daily living. A pension-eligible veteran who needs assistance with at least two activities of daily living -- bathing, dressing, walking, feeding, toileting, meal preparation, medication management, and the like -- is eligible for an increased pension payout under the VA's Aid and Attendance program, with the money presumably helping cover the costs of assistants whom the veteran hires to help the veteran complete these vital functions.72 A veteran does not need to receive professional assistance from a home health aide to qualify for Aid and Attendance.73 Assistance from a non-professional caregiver with any of these activities of daily living is enough to qualify for this enhancement to the non-service-connected pension benefit, as long as this non-professional consults with a professional healthcare provider at least once a month.74

In 2012, The New York Times ran an article stating that only a small fraction of veterans who were eligible for non-service-connected pension with Aid and Attendance were actually receiving the full benefit.75 Anecdotally, it is safe to say that the number of recipients of this valuable benefit remains far lower than the number of eligible individuals. Assisting veterans with this benefit will ensure that these individuals who served our country, who are now in a vulnerable position due to their disabilities and their limited income and assets, will be able to receive the tax-free financial assistance that they often desperately need.

Survivors' Benefits

An old bromide declares that "the claim dies with the veteran." Common belief, in other words, suggests that when a veteran passes away while that veteran's claim for benefits is still pending with the VA, the survivors of that veteran have no rights to that claim.

In reality, however, an eligible survivor (typically the veteran's surviving spouse or dependent child) may file a completed VA Form 21P-0847 within one year of the veteran's death to serve as a "substitute claimant" and continue pursuing the veteran's pending claim.76 The substitute claimant enjoys every legal right that the veteran previously held, including the right to add new evidence to support the claim, the right to receive the full benefit of the VA's statutory duty to assist, and the right to appeal an adverse decision to a higher level of administrative or judicial review.77 If the claim is still pending when the original substitute claimant dies, an eligible survivor of the substitute has one year after the substitute's death to file a new completed VA Form 21P-0847, giving the new substitute the legal right to continue pursuing the claim.78

Separately, a tax-free financial benefit known as Dependency and Indemnity Compensation (better known by the acronym "DIC") is available to certain un-remarried surviving spouses, dependent children, and dependent parents.79 To qualify, the claimant must prove one of three things about the veteran's death: (1) the veteran died while serving on active duty (to include active duty for training purposes); (2) the veteran was receiving (or should have been receiving) disability compensation from the VA for a condition rated as totally disabling for at least ten years prior to the veteran's death; or (3) the veteran died from a service-connected disability.80

The last of these three factors merits further attention. A veteran does not need to be receiving disability compensation payments from the VA at the time of death for that veteran's eligible survivor to receive DIC. Rather, the eligible survivor simply needs to prove that the veteran's death was caused by a medical condition that was at least as likely as not caused or exacerbated by that veteran's military service.81

For example, as discussed above, the VA now concedes that several disabilities are presumptively linked with military service during a particular time in a particular geographic region. Such presumptions are recent developments, however, and did not exist for many decades. If a veteran who never received disability compensation passed away from a condition that is now presumptively linked to that veteran's service, that veteran's surviving spouse or dependent children or parents may receive DIC. Thus, the VA should grant DIC to the eligible survivors of a veteran who served in Vietnam during the Vietnam War and passed away from ischemic heart disease, lung cancer, or any of the other conditions presumptively linked to Agent Orange exposure. The same applies for the eligible survivors of a veteran who was stationed at Camp Lejeune during the applicable time period and passed away from liver cancer, leukemia, kidney cancer, or any other condition on that presumptive list. The same applies for the eligible survivors of a veteran who served in any geographic location during any time period and passed away from Lou Gehrig's Disease.

To qualify for DIC, a surviving spouse must have been married to the veteran at the time of the veteran's death, and cannot be re-married to a new spouse.82 A dependent child must be unmarried, and must be under the age of eighteen or between the ages of eighteen and twenty-three and attending school, to be eligible for DIC.83 A parent must have an annual income that falls below an amount established annually by Congress.84 For DIC purposes, the term "parent" includes biological parents, adoptive parents, and foster parents, as long as the claimant "stood in the relationship of a parent" to the deceased veteran for at least one year prior to the veteran's last entry into active duty military service.85

Lastly, a low-income un-remarried surviving spouse or surviving unmarried dependent children of a wartime veteran may receive a "survivor's pension" from the VA.86 The income threshold for the survivor's pension is typically even lower than the income threshold for a veteran's non-service-connected pension. A surviving spouse living alone, for instance, must have an annual countable income of $9,078 to qualify for this benefit.87 All of the exceptions that apply to a non-service-connected pension -- such as not counting the value of the primary residence and reasonable lot area in the valuation of a claimant's assets and subtracting unreimbursed medical expenses from the claimant's annual income -- apply to a survivor's pension as well.88 Increased monthly payouts are available for a surviving spouse or surviving dependent child who is medically housebound or who qualifies for Aid and Attendance by virtue of needing assistance with at least two activities of daily living.89

Servicemembers' Civil Relief Act

The Servicemembers' Civil Relief Act (SCRA) is a powerful (but often under-used) set of consumer statutes for military members, recently discharged veterans, and their family members.90 As described by the Supreme Court, the concept behind these laws is simple and sensible: to "protect those who have been obliged to drop their own affairs to take up the burdens of the nation."91 In other words, the nation's best interests are served when members of the Armed Forces are focused on their military duties, not when these individuals are distracted by worrying about the actions of aggressive creditors back home.

Notably, though, the SCRA is not a "get out of debt free card." Instead, these laws apply equitable principles that respect the unique circumstances of military members and their families, while also recognizing the ultimate need of creditors to receive payments owed to them by debtors.92 For instance, it protects military members against default judgments in civil cases when military service prevents a defendant from appearing before a tribunal.93 Additionally, whenever a civil defendant is serving in the military, the court must appoint an attorney to represent the interests of the absent servicemember.94 If this attorney is unable to contact the military member, or if the case involves a defense that requires the servicemember's presence, then the presiding judge (or other arbiter) must stay the civil proceeding for at least ninety days, and longer if necessary in the interest of justice.95 The SCRA also tolls all statutes of limitations for the duration of a servicemember's time on active duty.96

Creditors cannot repossess a vehicle during the duration of a borrower's military service, provided that the military member either paid a deposit for the vehicle or made at least one payment on the installment contract for the vehicle prior to entering the Armed Forces, unless the creditor obtains a court order to repossess the vehicle.97 Similarly, if a military member falls behind in the payments for a rental unit in a self-storage facility, the facility's owner is forbidden to sell the military member's belongings that are kept in storage without a court order permitting the owner to do so.98

If a military member's ability to pay income taxes was materially affected by that individual's military service, then that individual receives a penalty-free period of 180 days after that person's date of discharge to pay the owed taxes.99 Furthermore, the SCRA permits the spouse of a military member serving on active duty to claim for tax purposes either their home of record, the military's member's state of legal residence, or the state in which they are living, allowing the military spouse to select the state with the most advantageous tax laws.100

If an individual leases an apartment and then enters the military, the SCRA allows that individual to terminate the lease without any penalties if ordered to a permanent change of station or a deployment of at least ninety days.101 To utilize this provision, the military member must provide the landlord with written notice of intent to terminate the lease and a copy of the permanent change of station or deployment orders.102 Comparable protections exist for servicemembers who sign a contract with a telecommunications company (e.g., cell phone, cable television, Internet access, etc.) and subsequently receive orders to spend at least ninety days on active duty in a location that this company does not cover.103 In such a situation, the military member may terminate the contract with the telecommunications company without penalty.104

If a person purchases property and takes out a mortgage on that property, and then enters the military, the SCRA limits the ability of creditors to foreclose.105 During the duration of the borrower's military service, and for one year after the borrower's date of discharge from the military, the creditor is forbidden from foreclosing on the property without a court order.106 A creditor who violates this provision may face fines or imprisonment of up to one year.107

For the duration of an individual's military service, creditors must cap their interest rates at 6% per year for any financial obligation into which that individual entered prior to entering military service.108 To trigger this protection, the individual must -- within 180 days of discharge from the military -- provide the creditor with a copy of his or her military orders and written notice of the desire to utilize the interest rate cap.109 In response, the creditor must forgive any interest greater than 6% per year during the military member's period of service.110 Mere deferment of interest greater than 6% to a later time does not satisfy the SCRA's requirements.111 Additionally, the SCRA bans the creditor from forcing the military member to accelerate the payment of principal as a way of retaliating against individuals wishing to utilize the 6% interest cap.112

Taken together, these statutes achieve their objective of protecting "those who have been obliged to drop their own affairs to take up the burdens of the nation." However, these laws protect no one when they are not asserted in defense of a military member, a recently discharged veteran, or their family members. All too commonly, defendants in civil cases are unaware of these protections. Judges and attorneys likewise frequently overlook these laws. Zealous advocacy on behalf of clients to whom these protections apply is crucial to ensure that the individuals whom these laws are designed to protect receive the full benefit of these statutes.

Conclusion

Asking all clients whether they ever served in the military, and whether any of their immediate family members ever served in the military, is the first and most important step that all attorneys should take on behalf of veterans and their families. However, as this article illustrated, lawyers can provide essential legal services to veterans and their families in a wide range of areas, and should not shy away from doing so.

Attorneys working in any consumer protection field can (and should) leverage the Servicemembers' Civil Relief Act's multiple protections wherever possible on their clients' behalf. Any Elder Law lawyer will serve their clients better by becoming well-versed in the VA's non-service-connected pension and survivors' pension programs, including the enhanced pension benefits available for veterans and surviving dependents who are housebound or who require assistance with activities of daily living. Personal injury attorneys would benefit from gaining proficiency not only in the procedural hurdles imposed by the Federal Tort Claims Act, but also in the VA's unique mechanism of a Section 1151 claim. Virtually any lawyer would be able to help their clients by possessing at least a baseline understanding of the VA's disability compensation claim process. Most important of all, recognizing the myths described in this article and knowing the truths behind these myths will allow all attorneys to correct veterans and their family members when they begin traveling down the wrong paths.
It is not true that only a veteran can help another veteran. While the bond of military service is unquestionably strong, it does not eliminate non-veterans from the veterans' services arena. As lawyers -- regardless of our veteran status -- it is our turn to serve the people whose service and sacrifice continues to mean so much for the preservation of the rule of law at home and abroad. Armed with an arsenal of veterans-specific laws and regulations, and with the aptitude to separate common myths from vital realities, we can serve these brave individuals well.


1. This question tends to receive more accurate responses than the question "Are you a veteran?" Many veterans do no self-identify as veterans, and thus do not disclose their military status if asked to apply the label of "veteran" to themselves. By contrast, the question "Have you ever served in the military?" tends to lead more individuals who are veterans to answer "yes." For a more detailed set of questions that can be asked during the intake process, see Understanding Your Client's Military Background, U.S. Dep't of Veterans Affairs, https://www.mentalhealth.va.gov/communityproviders/docs/Military_Service_Screening.pdf.

2. Act of July 4, 1864 §§12-13, 13 Stat. 387, 389; Marguerile Caruso, Comment, The Ten Dollars Fee Limit for Attorneys Who Represent Veterans in Veterans Benefits Proceedings - An Anachronism?, 29 SANTA CLARA L. REV. 973 (1989).

3. 38 U.S.C. §5904.

4. See Michael J. Wishnie, "A Boy Gets Into Trouble": Service Members, Civil Rights, and Veterans' Law Exceptionalism, 97 B.U. L. REV. 1709, 1710 ("In recent decades, moreover, veterans' law has rarely received the sustained attention of legal scholars or legal services programs, nor the scrutiny of attorneys, judges, and bar associations other than those already primarily engaged in this specialized field."); Ronald B. Abrams, Representing Veterans in the Battle for Benefits, 42 TRIAL 30 (2006).

5. See, e.g., Andrea Goldstein, Women Are The Most Visible Servicemembers, and the Most Invisible Veterans, TASK & PURPOSE, Mar. 8, 2018, https://www.cnas.org/publications/reports/women-are-the-most-visible-soldiers-and-the-most-invisible-veterans; Stephanie Russell-Kraft, Don't Ask, Don't Tell Is Gone, But Its Effects Still Haunt LGBT Veterans, TASK & PURPOSE, Feb. 28, 2018, https://taskandpurpose.com/24-year-anniversary-dadt-gay-lesbian-veterans; see also Melissa Nann Burke, Thousands of Michigan Veterans Miss Out On Benefits, DETROIT NEWS, Mar. 31, 2015, https://www.detroitnews.com/story/news/politics/2015/03/31/thousands-michigan-veterans-miss-benefits/70752468/.
6. 38 U.S.C. §101(2).
7. See 38 U.S.C. §101(21).
8. 38 U.S.C. §5103A(a)(1).
9. 38 C.F.R. §3.013(a).
10. See Duenas v. Principi, 18 Vet. App. 512, 516 (2004).
11. See 38 U.S.C. §101(21); 38 C.F.R. §3.6 (defining the parameters of "active duty" military service).
12. 38 C.F.R. §3.6(a) ("[Active duty military service includes] any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training.").
13. 38 C.F.R. §3.6(a).
14. 38 U.S.C. §7105(b)(1).
15. 38 U.S.C. §7105(d).
16. 38 U.S.C. §7105; 38 C.F.R. §20.303.
17. Nicole Ogrysko, Overseers Fear VA's New Appeals Modernization Will Go The Way Of Past Failed Projects, FED. NEWS NETWORK, Feb. 2, 2018, https://federalnewsnetwork.com/veterans-affairs/2018/02/overseers-fear-va-new-appeals-modernization-will-go-the-way-of-past-failed-projects/.
18. 38 U.S.C. §7251.
19. 38 U.S.C. §7266(a).
20. 38 U.S.C. §7292.
21. VHA v. VBA, Hill & Ponton, Dec. 15, 2014, https://www.hillandponton.com/vha-vs-vba/.
22. This is due largely to the VA's historically poor technological systems, which have prevented each branch of the VA from communicating effectively with the other branches of the agency. See Tom Philpott, VA Officials Say They Were Blindsided By Computer Problems, Process Changes On GI Bill Payments, STARS & STRIPES, Nov. 21, 2018, https://www.stripes.com/va-officials-say-they-were-blindsided-by-computer-problems-process-changes-on-gi-bill-payments-1.557549; Arthur Allen, A 40-Year 'Conspiracy' At The VA, Politico, Mar. 19, 2017, https://www.politico.com/agenda/story/2017/03/vista-computer-history-va-conspiracy-000367.
23. See note 22, supra.
24. 38 U.S.C. §1110.
25. 38 U.S.C. §1110; Abrams, supra note 4, at 30.
26. 38 C.F.R. §3.303.
27. See Title 38 of the United States Code of Federal Regulations; Jones v. Shinseki, 23 Vet. App. 382, 388 (Fed. Cir. 2004).
28. In addition, if a veteran has two or more non-compensable ratings for separate disabilities that interfere with the veteran's "normal employability," the VA is supposed to apply a compensable 10% rating to that veteran's case. 38 C.F.R. §3.324.
29. 38 C.F.R. §4.31.
30. 38 U.S.C. §1115.
31. 38 C.F.R. §17.1110(c)(10).
32. 38 U.S.C. §1745.
33. 38 C.F.R. §17.161(e).
34. 38 C.F.R. §4.16.
35. 38 C.F.R. §4.16(a) ("Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis . . . when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.").
36. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991) (quoting Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975)).
37. 38 U.S.C. §5103A.
38. 38 U.S.C. §1116.
39. 38 C.F.R. §3.309. These disabilities include Type II diabetes, prostate cancer, lung cancer, ischemic heart disease, peripheral neuropathy, Parkinson's disease, and several more.
40. 38 C.F.R. §3.307(a)(7). These disabilities include bladder cancer, kidney cancer, adult leukemia, liver cancer, and Parkinson's disease.
41. 38 U.S.C. §1112(b).
42. 38 U.S.C. §1112(c).
43. 38 C.F.R. §3.316.
44. 38 C.F.R. §3.317.
45. 38 C.F.R. §3.318.
46. 38 C.F.R. §3.310.
47. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001).
48. 38 U.S.C. §1110.
49. 38 C.F.R. §3.301(c)(2); 38 C.F.R. §3.310; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001).
50. For an excellent overview of the principles of the FTCA, see Paul F. Figley, Understanding the Federal Tort Claims Act: A Different Metaphor, 44 TORT TRIAL & INSURANCE PRACTICE L. J. 1105 (Spring-Summer 2009).
51. Claims Under the Federal Tort Claims Act, United States Department of Veterans Affairs Office of General Counsel, https://www.va.gov/ogc/ftca.asp.
52. For a detailed discussion of this entire process, see VA Health Care: VA Uses Medical Injury Tort Claims Data to Assess Veterans' Care, but Should Take Action to Ensure That These Data Are Complete, Gov't Accountability Office, Oct. 28, 2011, available at https://www.gao.gov/assets/590/585979.html.
53. 38 U.S.C. §1151.
54. 38 U.S.C. §1151(a), (a)(1).
55. 38 U.S.C. §1151(b).
56. 38 U.S.C. §1151(b)(2); see also 38 C.F.R. §3.362.
57. 38 U.S.C. §1521.
58. See 38 U.S.C. §1502; 38 U.S.C. §1521 (describing the disability requirements for non-service-connected pension eligibility without any discussion of finding a nexus between military service and a current disabling condition).
59. 38 U.S.C. §1501(4) (defining the term "period of war").
60. See 38 C.F.R. §3.2.
61. The VA does impose some minimal length-of-service requirements for non-service-connected pension eligibility, but these requirements do not establish any geographic restrictions. See 38 U.S.C. §1521(j).
62. 38 U.S.C. §1513.
63. 38 U.S.C. §1502.
64. 38 U.S.C. §1502(4).
65. See VA Amends Regulations On VA Pension and Other Needs-Based Programs, Press Release, U.S. Dep't of Veterans Affairs, Oct. 30, 2018, https://www.va.gov/opa/pressrel/pressrelease.cfm?id=5134.
66. 38 U.S.C. §1522; 38 C.F.R. §3.274(a).
67. 38 C.F.R. §3.23.
68. 38 C.F.R. §3.275(a)(3); 38 C.F.R. §3.275 (b)(1).
69. 38 C.F.R. §3.275 (b)(2).
70. 38 C.F.R. §3.278.
71. 38 C.F.R. §3.278(a).
72. 38 C.F.R. §3.352.
73. 38 C.F.R. §3.352(b).
74. 38 C.F.R. §3.352(b)(4).
75. Susan Seliger, A Little-Known Benefit for Aging Veterans, N.Y. TIMES, Sept. 19, 2012, https://newoldage.blogs.nytimes.com/2012/09/19/few-know-of-benefit-to-help-aging-veterans/.
76. 38 C.F.R. §3.1010.
77. 38 C.F.R. §3.1010(f).
78. 38 C.F.R. §3.1010(g)(5).
79. 38 U.S.C. §1311 (DIC payments for surviving spouses); 38 U.S.C. §1313 (DIC payments for surviving children); 38 U.S.C. §1315 (DIC payments for surviving parents).
80. 38 U.S.C. §1310.
81. 38 U.S.C. §1310(a) ("The standards and criteria for determining whether or not a disability is service-connected shall be those applicable under chapter 11 of this title.").
82. 38 C.F.R. §3.50. Although 38 C.F.R. §3.50(a) continues to define the term "spouse" as "a person of the opposite sex," the VA will award DIC payments to the surviving spouse of the same sex of the veteran as well, following a United States Supreme Court ruling on June 26, 2015, that prevents states from banning same-sex marriages.
83. 38 U.S.C. §1313.
84. 38 U.S.C. §1315; 38 C.F.R. §3.25.
85. 38 U.S.C. §1315(a); 38 U.S.C. §101(5).
86. 38 U.S.C. §1541.
87. See Survivors Pension Rate Tables--Effective 12/1/18, U.S. Dep't of Veterans Affairs, https://www.benefits.va.gov/pension/current_rates_survivor_pen.asp.
88. 38 U.S.C. §1541; 38 C.F.R. §3.3.
89. 38 U.S.C. §1541.
90. See Benjamin Pomerance, In Search of the Uniform: Praises, Problems, and the Quest for Consistency Within the Servicemembers' Civil Relief Act, 42 OHIO N.U. L. REV. 747, 748-50 (2016).
91. Boone v. Lightner, 319 U.S. 561, 575 (1943).
92. See, e.g., Engstrom v. First Nat'l Bank, 47 F.3d 1459, 1462 (5th Cir. 1995) ("Although the act is to be liberally construed it is not to be used as a sword against persons with legitimate claims."); Roger M. Baron, The Staying Power of the Soldiers' and Sailors' Civil Relief Act, 32 SANTA CLARA L. REV. 137, 137 (1992) ("The provisions of the [SCRA] . . . are not intended to discharge the civil liabilities of military personnel, but rather merely to suspend their enforcement.").
93. 50 U.S.C. §3931.
94. 50 U.S.C. §3931 (b)(2).
95. 50 U.S.C. §3931(d); 50 U.S.C. §3932(b).
96. 50 U.S.C. §3936(a).
97. 50 U.S.C. §3955.
98. 50 U.S.C. §3958.
99. 50 U.S.C. §4000.
100. See 50 U.S.C. §4001.
101. 50 U.S.C. §3955(b)(1).
102. 50 U.S.C. §3955 (c)(1)(A).
103. 50 U.S.C. §3956.
104. 50 U.S.C. §3956 (e)(1) ("For any contract terminated under this section, the service provider under the contract may not impose an early termination charge.").
105. 50 U.S.C. §3953.
106. 50 U.S.C. §3953 (b).
107. 50 U.S.C. §3953 (d).
108. 50 U.S.C. §3937.
109. 50 U.S.C. §3937 (b)(1).
110. 50 U.S.C. §3937 (a)(2).
111. Pomerance, supra note 94, at 754.
112. 50 U.S.C. §3937 (a)(3).

Supreme Court Admission Program

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The Young Lawyers Section is proud to sponsor the 2019 admissions program to the United States Supreme Court. You do not need to be a member of the Young Lawyers Section to participate.

The ceremony for admission to the United States Supreme Court is scheduled for Monday, November 18, 2019. Our last Supreme Court admissions program was well-received and filled up very quickly. Please note that this program is strictly limited to 50 applicants.

If you are interested in participating in this exciting event, please return the pre-registration form with appropriate fee(s) no later than Wednesday, May 1, 2019. In June, we will forward you the appropriate paperwork with instructions for processing your actual admission application and application fee of $200. Pre-registration does not guarantee you a spot in the admission program, only a completed application secures a spot. See the pre-registration form for more details.

Please note: To qualify for admission to the bar of the United States Supreme Court, you must have been admitted to practice in the highest court of a State, Commonwealth, Territory, Possession or the District of Columbia since at least November 17, 2016.

For those interested in applying, we suggest you immediately obtain an original Certificate of Good Standing from the Appellate Division where you were admitted. You must obtain an original which cannot be more than one-year old.

The limit of 50 applicants will be based upon the first 50 completed applications and application fees ($200 Supreme Court Application fee), and not upon the receipt of your pre-registration form. Please note: Do not send in the $200 Application fee now.

While you do not have to be a member of the Young Lawyers Section to participate, preference will be given to Young Lawyer Section members, followed by the order in which your application is received. Again, we are limited to a total of 50 applicants. If you are not a member of the Young Lawyers Section, and would like to become one, please contact Amy Jasiewicz at ajasiewicz@nysba.org or 518.487.5682. In the event that you have pre-registered, but are not timely in forwarding the properly completed application, your registration fee will be refunded prior to October 21, 2019.

Please mark your calendar with the important deadline dates listed below. To view the program brochure and pre-registration form, click here: http://www.nysba.org/Sections/Young_Lawyers/Events/2019/2019_Updated_USSC_pre-registration_form.html.

Deadline Dates

May 1, 2019
Pre-registration form and event fees must be received at the Bar Center in Albany

August 15, 2019
Supreme Court completed applications and $200 application fee

October 21, 2019
Refunds will not be issued after this date

New Members of the Section

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Please join me in welcoming the following new members to the Young Lawyers Section!

Ory Apelboim, Esq.

Sarah E. Benowich, Esq.

Spencer Brachfeld

Tabitha A. Ferrer, Esq.

Rachel B. Geraghty, Esq.

Darryl R. Graham, Esq.

Paz Harlev, Esq.

Shvonne Hasan

Jordan A. Lieber, Esq.

Hamutal Lieberman, Esq.

Jacob H. Lisogorsky, Esq.

Cesar G. Meraz, Esq.

Diana T. Mohyi, Esq.

Molly G. Rothschild

Seyed M. Rowhani

Elan Stiberman

Christian E. Witzke, Esq.

Sherlly Alceus

Moshe O. Boroosan, Esq.

Dela A. Britton, Esq.

Louise Carron

Daniel P. Fraser

Ivette Garcia

Stephanie N. Morales

Jonathan Perez, Esq.

Igor Stolyar, Esq.

William H. Williams, Jr.

David L. Brown, Esq.

Teal R. Johnson, Esq.

Sarah M. Kelly, Esq.

Tara K. Tiemann, Esq.

Zachary T. Garlick, Esq.

Kaeleigh C. Jessen, Esq.

Alexander Liberman

Noah Mittman

Matthew De La Torre, Esq.

Heather R. Donohue, Esq.

Kyle H.G. Gruder, Esq.

Suzanne Hassani

Salia B. Khwaja, Esq.

Viktoriya Liberchuk, Esq.

Daniel J. Pilo, Esq.

Amanda E. Ramirez-Kelmer, Esq.

Deena R. Rosenblatt, Esq.

Andrew M. Rothstein, Esq.

Julia L. Santo

Robert Ayers

Batool T. Banker, Esq.

Shu Chen, Esq.

Amanda C. Croushore

Jonathan A. Heller, Esq.

Mindy B. Lin, Esq.

Arique D. Iii , Esq.

Corey Aronson

Irina Beschieriu

Frank J. Bewkes, Esq.

Kelly L. Bray, Esq.

Casey N. Champaign, Esq.

Hung-yu Chi, Esq.

Bryan Cloth

Thomas E. Colvin, Esq.

Krisandra C. Cuenta, Esq.

Robert J. Desmond, Esq.

Maria V.F. Ball, Esq.

Vincent Ferrer

Caroline L. Guensberg, Esq.

Tracy R. Janes, Esq.

Kekelly Ketemepi

Kirsten A. Kovats

Jace D. Krakovitz

Adrian M. Laluk, Esq.

Sukkyun Lee Esq.

Brian Lewis

Vita V. Litvin, Esq.

Raven Moore

Katelin A. Morales, Esq.

Leeah Odom

Joseph J. Railey, Jr., Esq.

Idin Sabahipour

Emily M. Schlaeger

Ayda I. Suberoglu, Esq.

Melissa Tonglee

Katherine Wilcox

Kristyn A. Winner

Wenwen Zhang, Esq.

Join the Young Lawyers Section

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Become the voice of newly-admitted and young attorneys in NYSBA. Designed to help make the transition from law school to practice an easier one for newly-admitted attorneys, the Young Lawyers Section connects you with experienced attorneys lending general advice, legal guidance, or expert opinions. Take advantage of educational programs, networking events, and the exclusive Young Lawyers Section Mentor Directory, which is just one of the Section's mentoring initiatives. The Section publishes Electronically In Touch and Perspective. Law students may also join the Section and get a jump start on their careers.

ALREADY A MEMBER OF THIS SECTION? JOIN A COMMITTEE!

Are you interested in volunteering for a Section Committee? Please email Amy Jasiewicz at ajasiewicz@nysba.org and indicate the committees you wish to join. The Young Lawyers Section has the following committees:


  • Executive Committee

  • Communications Committee

  • Community Service and Pro Bono Committee

  • Diversity Committee

  • Law Student Development Committee

  • Long-Range Planning Committee

  • Membership Committee

  • Mentoring Committee

  • Nominating Committee

  • Perspective Editorial Board

Disclaimer

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The Officers of YLS and the Editors of Electronically In Touch wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors and do not necessarily represent the thoughts and opinions of the authors' employers or clients, the New York State Bar Association, Young Lawyers Section, or its Officers or Executive Committee.

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