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crazyhorse3022

Aid And Attendance

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Just talked an ro out of st. Paul. They are still denying aid and attendance for tbi n residuals. He said under 38cfr3.352 (a) I have to have 100% scheduler

I read cfr and not true. I've been 100% permanent and total since 2008. Tdiu rating. My current overall rating is 90%.

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CH3022 is correct. The language of 38 CFR §3.352(a) (which most associate with A&A 1, also known as SMC-L) does not mention your percentage of rating as a consideration for entitlement. What the regulation does say is far more important. §3.352(a) uses what we call the means test which is a far cry from using your rating percentage. By rights, if you are entitled to this Special Monthly Compensation (A&A 1), you should already be rated appropriately such that it would trigger this entitlement without having to file for it. Since VA is not exactly proactive, you sometimes have to give them a polite nudge. This became far easier March 25th with the new 526 EZ requirement if you believe VA.

Remember, you do not have to suffer or qualify for all of them. Each one is technically a stand alone qualifier. When the Saint Paul RO spokesman opined as to the need for a 100% schedular rating, he was partially correct inasmuch as it is presumed you are already at SMC S and merely transitioning into SMC L ($3,779.09)- which is the A&A 1 entitlement strapped onto a 100% plus SMC S ($3,415.74). That, for the record, is a $363.35 increase above the SMC-S rate. http://www.military.com/benefits/veteran-benefits/special-monthly-compensation-smc-tables.html

Here are the various means tests listed.

§ 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©(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. 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 in this paragraph be found to exist before a favorable rating may be made.
The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole.
It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need.
Determinations that the veteran 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 from others.
The underlined above in red is the salient consideration. To arrive at this stage and ask for A&A 1 does require that you be TDIU or 100% schedular. The Bradley v. Peake and Buie v. Shinseki line of legal reasoning distinguishes that TDIU is functionally equivalent as a stand alone to a true 100% schedular rating. Technically, you do not need to be receiving SMC S. It's conceivable that disability(s) requiring A&A 1 can arise instantly much like a car going from 0- 60 mph in a very short time. Most importantly remember, for the purposes of definition, VA defines schedular as a rating (singular) for a given diagnostic code (DC). Thus a 50% rating for PTSD would be considered by VA to be a 50% schedular rating for PTSD. Adding up all your ratings is a collective rating- not a schedular rating. The semantics are confusing so I thought I should clear that up. I see the term schedular tossed around and the significance of it is often lost in translation.
Edited by asknod
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Outstanding nod. I'm gonna get dirty with the va.

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There are 2 Aid and Attendence's.

1. The first one is A and A PENSION, which is a needs based benefit for Vets who meet A and A criteria and who get a VA pension. A and A PENSIONERS can NOT be 100% as, by defination, they would be number 2, below.

2. The second is A and A Compensation (also known as SMC L). This is not based upon need.

There is a HUGE difference in pay between number one and number 2, above. Right now, SMC L (100% compensation plus A and A) married vets get about 3779 per month. However, PENSION A and A Vets would get MUCH less, or about $2085 per month for a married Veteran.

Housebound is the same thing. There is a PENSION housebound (SMP) which nets you an empty lolipop stick if you are 100% P and T.

However, there is a Compensation Housebound, called SMC S, which nets 100 percent Veterans about 347 per month over and above their regular 100 percent compensation.

Edited by broncovet
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I applied for aid and attendance because due to my brain surgery (which VA messed up) I now have to have someone help me in and out of the tub, help me do everything. VA has authorized me a motor scooter and ramp and tow bar for my car. My brain surgery left me with short term memory, uncontrollable hand and leg movement as well as stuttering. Continuous head pain which they are trying to manage. They didn't mention that they cut 4 nerves that did not need to be cut.

Question: Will I receive AA?

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We just received a denial from VA for A & A. I'm debating about whether or not to appeal. As a former union steward, my usual stance is to appeal and make them prove that we're not eligible. His therapist--and mine--all share the same opinion (both have written statements to that effect), that we should get it, but my vet is worried that VA will deem him incompetent and take away his firearm rights. He is 80% due to PTSD, 10% headaches, and 10% tinnitus.

I wrote up a 3 page statement to support our position and describe our daily routine. I think it qualifies for "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." 38 CFR 3.352 Could somebody give me some feedback?

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