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SMC awarded back to original Effective Date?

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When applying for SMC L using Aid and attendance as the predicate, certain disabilities (but not all listed) are what is needed. In order to get the VA rater to see your disability picture as so great as to render you in need of Aid and attendance, you will have to support that proposition. Look at all the reasons you might qualify. Here's the list from 38 CFR 3.352

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

>inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable;

>frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.);

>inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness;

>inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment.

>“Bedridden” will be a proper basis for the determination. 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.

 

When you ask for reconsideration or an earlier effective date for A&A, you must pick a date that you can point to with medically supporting documents and declare that is the day you qualified for SMC L. You will need a favorable, completed a 21-2680 from your PCP supporting your hypothesis. Your wife cannot make that determination unless she has medical credentials (RN at a bare minimum). Even with that, they will still call you in for extensive workups. Lay testimony here is not what will carry the day. Your current list of disabilities (40/20/20/10) equals 66% rounded up to 70%. As no single disability is greater than 40% and the combination is  70%, you will have a hard time painting a disability picture that will reflect that necessary to attain A&A. Mind you, I am not trying to dissuade you from attempting it. I merely point out the inevitable roadblocks. 

I'm 290%. My upper and lower extremities are finally beginning to succumb to peripheral neuropathy. I must file first to get them SC due to my Hep C and/or porphyria from Agent Orange or even I will never get SMC L. I could have total loss of use of the legs but if they are not SC, I cannot claim SMC L.  Similarly, if I can still pick up a fork or spoon or operate the bidet, I would not qualify for  SMC L under the A&A codicil. 

A C&P exam will delve deeply into your arm and leg strength and perceived radiculopathy. Pain alone on excursion, is not a defining requirement to attain A&A. They give you things to squeeze to see what your grip strength is. Trust me, they are trained to spot fakers. A test for  peripheral neuropathy in your extremities, including an EMG, will reveal if your muscle responses are genuine. A DBQ is merely a report card-not a confirmation of need for aid and attendance. There is no DBQ specifically for A&A. One thing I've seen is a Vet saying he can no longer wipe his butt after defecating. VA usually solves that by giving him a bidet. That's way cheaper than A&A. They can give you an electric can opener under the ILP program to aid you in eating and preparing your own meals. You have no idea what you are walking into yet. If you are not at SMC S with a 100% or TDIU, plus a 60% rating for another unrelated disability, or if you are under 55, VA is going to make you work for it. Dr. Bash or Dr. Ellis might even have a problem writing an IMO for that one. Another thing will be SAH/SHA improvements to the home or a vehicle grant. Often, absent these, they will not even discuss SMC L under any perceived entitlement-be it loss of use of lower or lower/upper extremities or A&A. If you still have a driver's license, they'll say that proves you are capable of ambulation and do not need A&A. 

I would have a doctor opine as to your abilities with a 2680 before approaching the VA. Even with that, if you can walk and are not considered housebound in the truest medical sense, you may not prevail. SMC is reserved for the most egregious cases otherwise you would see more of us receiving it.  

 

 

Edited by asknod
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I referred to the USC 1114 to answer this.  While 38 CFR 3.352, above,  seperates the items with an ";" (semicolon) this does not precisely answer whether this means "and" or it means "or" for an operator.    However, if you look at 38 USC it makes it clear that you need not meet "all" of the criteria, but, allegedly could meet the criteria for A and A if you met just "one" of the listed criteria.  

(l)
if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance, the monthly compensation shall be $3,327;
(m)
if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs with factors preventing natural knee action with prostheses in place, or of one arm and one leg with factors preventing natural elbow and knee action with prostheses in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such veteran so significantly disabled as to be in need of regular aid and attendance, the monthly compensation shall be $3,671;
(n)
if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both arms with factors preventing natural elbow action with prostheses in place, has suffered the anatomical loss of both legs with factors that prevent the use of prosthetic appliances, or has suffered the anatomical loss of one arm and one leg with factors that prevent the use of prosthetic appliances, or has suffered the anatomical loss of both eyes, or has suffered blindness without light perception in both eyes, the monthly compensation shall be $4,176;

Notice, in the above, that 38USC   1114 L through N use the "or" operator.  This means you can qualify for Aid and Attendance with "any" of those criteria listed in USC 1114 L.  You need not have them all, just one.  

In my denial, the VA alleged that I did not meet the criteria for SMC L because I was not bedridden.  This is error.  I dont need to be bedridden, I can meet the criteria for any of the items in 

There are at least 3 levels of Aid and Attendance, and USC 1114 L is the most basic and least restrictive.  38 cfr 3.352 also makes it clear you need not meet all the criteria to qualify for SMC L.  

Edited by broncovet
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VA most always in this particular situation, reverts to 38 CFR 3.351(b) and  subsection (c) is just the highway sign to go to 3.352. 3.351(b) uses what VA will concentrate on even though it is a nebulous term. 

(b) Aid and attendance; need. Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. The criteria set forth in paragraph (c) of this section will be applied in determining whether such need exists.

As long as you realize this is the yardstick VA is going to measure you by, you can choose how you wish to present it. I doubt you'll have to worry about any of the higher SMCs. None of them have the beginner aid and attendance "helpless" codicil so they would not apply. 

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Very interesting discussion, for NOD's reasons above, I continue to Appeal an 08 AO lower Extremity IPN DX Denial.

Semper Fi

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  • 1 month later...
On ‎10‎/‎29‎/‎2016 at 5:13 PM, asknod said:

When applying for SMC L using Aid and attendance as the predicate, certain disabilities (but not all listed) are what is needed. In order to get the VA rater to see your disability picture as so great as to render you in need of Aid and attendance, you will have to support that proposition. Look at all the reasons you might qualify. Here's the list from 38 CFR 3.352

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

>inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable;

>frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.);

>inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness;

>inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment.

>“Bedridden” will be a proper basis for the determination. 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.

 

When you ask for reconsideration or an earlier effective date for A&A, you must pick a date that you can point to with medically supporting documents and declare that is the day you qualified for SMC L. You will need a favorable, completed a 21-2680 from your PCP supporting your hypothesis. Your wife cannot make that determination unless she has medical credentials (RN at a bare minimum). Even with that, they will still call you in for extensive workups. Lay testimony here is not what will carry the day. Your current list of disabilities (40/20/20/10) equals 66% rounded up to 70%. As no single disability is greater than 40% and the combination is  70%, you will have a hard time painting a disability picture that will reflect that necessary to attain A&A. Mind you, I am not trying to dissuade you from attempting it. I merely point out the inevitable roadblocks. 

I'm 290%. My upper and lower extremities are finally beginning to succumb to peripheral neuropathy. I must file first to get them SC due to my Hep C and/or porphyria from Agent Orange or even I will never get SMC L. I could have total loss of use of the legs but if they are not SC, I cannot claim SMC L.  Similarly, if I can still pick up a fork or spoon or operate the bidet, I would not qualify for  SMC L under the A&A codicil. 

A C&P exam will delve deeply into your arm and leg strength and perceived radiculopathy. Pain alone on excursion, is not a defining requirement to attain A&A. They give you things to squeeze to see what your grip strength is. Trust me, they are trained to spot fakers. A test for  peripheral neuropathy in your extremities, including an EMG, will reveal if your muscle responses are genuine. A DBQ is merely a report card-not a confirmation of need for aid and attendance. There is no DBQ specifically for A&A. One thing I've seen is a Vet saying he can no longer wipe his butt after defecating. VA usually solves that by giving him a bidet. That's way cheaper than A&A. They can give you an electric can opener under the ILP program to aid you in eating and preparing your own meals. You have no idea what you are walking into yet. If you are not at SMC S with a 100% or TDIU, plus a 60% rating for another unrelated disability, or if you are under 55, VA is going to make you work for it. Dr. Bash or Dr. Ellis might even have a problem writing an IMO for that one. Another thing will be SAH/SHA improvements to the home or a vehicle grant. Often, absent these, they will not even discuss SMC L under any perceived entitlement-be it loss of use of lower or lower/upper extremities or A&A. If you still have a driver's license, they'll say that proves you are capable of ambulation and do not need A&A. 

I would have a doctor opine as to your abilities with a 2680 before approaching the VA. Even with that, if you can walk and are not considered housebound in the truest medical sense, you may not prevail. SMC is reserved for the most egregious cases otherwise you would see more of us receiving it.  

 

 

Asknod,

I really appreciate your detailed input. I was able to get my PMC to fill out the 2680 in what I would perceive as a favorable response. she clearly spoke to my weakness/loss of strength in both my right arm and leg. At present the pain is so great my spine and pain management treatment consists of them preparing to burn the nerves in my back for temporary relief. Thoughts?

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The test will be elementary. They will make a determination that you have effectively lost the use of your right upper and lower extremity which would grant you a 100% rating for it and subsequently give you SMC L for loss of use. That is not the same as A&A. The SMC (L) is the vehicle but the rationale will be loss of use rather than the need for A&A unless you are not ambulatory. Remember, SMC L is a multi-pronged tool. There are several reasons why they grant it. Moreover, they do not grant it if they can find a way out of it. All the Vets I've wrangled the higher SMCs for always go through a vetting process and boy howdy does VA try to wriggle out of it with some of the dangedest  excuses. 

I had one for R2 where the Vet was bedridden (w/ bedsores) and they said he could make the transition (just barely) from the bed to his wheelchair- albeit assisted. VA insisted that if he could stand, however briefly, to make this transition, that it somehow unequivocally proved he had not lost the use of his lower extremities. This battle went on for a year. I finally got a private IMO to defeat it. Now we are battling for a 2008 effective date. They insist it's 2014. At $8,400 a month ($100 K a year), you can see why he's fighting for those extra six years of compensation at R2 or at least a Fenderson staged rating building up to it. The medrecs support him entirely but you know VA. They'll lip whip it with 500 attorneys for a decade in hopes of a delay and deny until he dies.

Best of luck on your battle, sir and Merry Christmas.

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