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soldieofchrist4id

Questions About A&a & Claims?

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I just got a rating decision from the VA giving me 50% for PTSD. I am still waiting on a decision for Sezuiers and tbi (which i think that they may combine),depression,and A&A. So without this other stuff I have 210% disability which they still rate me at 90% how? Also I am in a wheelchair due to my tbi and seziuers and my wife takes care of me i am not helpless but I can't perform my duties as a husband without a little help. They have put me in for reg A&A after a decision is made how would I get this increased to R1? My doctor filed out th form my wife has to drive me, the va just told me I can't manage my finaces, can't own a firearm and etc. I am tired of them ripping my family off of all the beniefits they deserve. I don't care about the money but if i am eleigable I want to get. I just found out about the VA house grant and auto. Can anyone help me to understand how to even apply for a A&A increase and who has to do it.

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I just got a rating decision from the VA giving me 50% for PTSD. I am still waiting on a decision for Sezuiers and tbi (which i think that they may combine),depression,and A&A. So without this other stuff I have 210% disability which they still rate me at 90% how? Also I am in a wheelchair due to my tbi and seziuers and my wife takes care of me i am not helpless but I can't perform my duties as a husband without a little help. They have put me in for reg A&A after a decision is made how would I get this increased to R1? My doctor filed out th form my wife has to drive me, the va just told me I can't manage my finaces, can't own a firearm and etc. I am tired of them ripping my family off of all the beniefits they deserve. I don't care about the money but if i am eleigable I want to get. I just found out about the VA house grant and auto. Can anyone help me to understand how to even apply for a A&A increase and who has to do it.

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You have to fill out a form and your PCP or Doctor must complete part of it.I guess if you asked VARO for it they would have to provide forms and instructions.

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I think you should wait for their determination on the regular A & A before considering R-1.

R-1 is one of the highest levels of SMC and is dependent on many factors.

This BVA case explains a little as to the guidelines that determine R-1.

http://www4.va.gov/vetapp01/files03/0120786.txt

In part:

“As noted in the November 1995 rating decision, the grant of

an R-1 rate of aid and attendance (as distinguished from the

L-2 rate of aid and attendance, which was granted effective

July 1990) is predicated on the grant of service connection

for malignant lymphoma. In this respect, the R-1 rate of SMC

is warranted for any veteran receiving SMC under 38 U.S.C.A.

§ 1114(o); the maximum rate of SMC under § 1114(p), or at the

intermediate rate authorized between § 1114(n) and § 1114(o);

and who is in need of regular aid and attendance. 38

U.S.C.A. § 1114®(1) (West 1991 & Supp. 2000).”

( my note- SMC “S” award cannot be built on for the SMR R-1 criteria)

“38 U.S.C.A. § 1114(o) provides for SMC for a veteran who, as

the result of service-connected disability, has suffered

disability warranting entitlement to two or more rates

provided under subsections (l) through (n) of section 1114.

However, these additional rates may not be considered twice.

Ultimately, a veteran must have more than one service-

connected disability that has resulted in two or more ratings

under subsections (l) through (n). In this case, an

evaluation for MS cannot be rated more than once under

subsections (l) through (n). While the Board concedes that

the veteran has been granted service connection for multiple

shell fragment wounds, he has not alleged, nor does the

record reasonably show, that these have caused blindness,

deafness or loss of feet, which are contemplated in

subsections (l) through (n).”

Until the grant of service connection for malignant lymphoma,

effective April 28, 1995, the veteran did not meet the

statutory threshold for the R-1 rate of aid and attendance

under the first part of 38 U.S.C.A. § 1114®. As of that

date, the RO determined that multiple service-connected

disabilities, MS and lymphoma, brought into play multiple

evaluations under subsections (l) through (n).

Turning to the second part of 38 U.S.C.A. § 1114®, which

provides for a grant of the R-1 level of aid and attendance

if the maximum rate of SMC is authorized under subsection

(p), the Board notes that the July 1995 and November 1995

rating decisions found that the intermediate rate was

payable. The intermediate rate was based on the loss of use

of the left hand with loss of use of the left lower

extremity, right arm weakness, residuals of the shell

fragment wound, and bowel and bladder impairment. The

highest rate was not assigned, and has not been assigned to

the veteran. The veteran does not challenge this, nor does

the record reasonably raise that the veteran's MS and shell

fragment wounds warrant the highest rate available under the

P level of SMC. As such, an effective date prior to April

28, 1995 for the grant of the R-1 level of SMC is not

warranted under this provision.

Finally, turning to the third method of payment of SMC at the

R-1 rate, the veteran must show that he was entitled to the

intermediate rate authorized under subsections (n) and (o).

To date, the veteran has not been provided SMC at the N rate.

Hence, an effective date prior to April 28, 1995 for the

grant of the R-1 level of SMC is not warranted under this

third provision.

Looking at the above, the earliest date that legal

entitlement arose for payment of SMC at the R-1 rate was

April 28, 1995, the effective date of service connection for

malignant lymphoma. While the veteran did indeed file a

claim prior to that date, legal entitlement only arose as of

that date. The regulation governing effective dates provides

that the effective date for a claim for increased

compensation is the latter of the date of claim or

entitlement arose. In this case, the latter date is the date

of entitlement, April 28, 1995.

The Board acknowledges the veteran's repeated arguments that

his service-connected MS, in conjunction with his combat

wounds, would allow for an effective date prior to April 28,

1995, as he required aid and attendance of another person

prior to that date. The Board further acknowledges that the

evidence clearly shows that the veteran required the aid and

attendance of another person prior to April 1995, as he was

assigned SMC at the aid and attendance rate, as a result of

his MS, effective July 1990. However, the fact that the

veteran required the aid and attendance of another person

does not automatically entitle him to SMC at the R-1 rate.

Simply put, additional criteria must be met for a claimant to

be entitled to SMC at the R-1 rate that is not required for

payment of SMC at the aid and attendance rate. For the

reasons stated above, the Board has determined that the

veteran did not meet this additional criteria for SMC at the

R-1 rate until he was granted service connection for

malignant lymphoma, effective April 28, 1995. Accordingly,

the Board concludes that the payment of SMC at the aid and

attendance rate, rather than at the R-1 rate, adequately

compensates the veteran for the severity of his service-

connected MS for the period prior to April 28, 1995.

"[W]here the law and not the evidence is dispositive, the

claim should be denied or the appeal to the BVA terminated

because of the absence of legal merit or the lack of

entitlement under the law." See Shields v. Brown, 8 Vet.

App. 346, 351-352 (1995) [citing Sabonis v. Brown, 6 Vet.

App. 426, 430 (1994)].”

To get back to your specific question- if the VA awards you for Regular A & A and Housebound under the SMC “L” award, you can appeal this if the medical evidence warrants the M,N, O or P award or when the evidence is considered it could eventually bring you up to R-1.

Hard to know what the VA will do because you are at 90% now and the claim for the A & A and TBI residuals is still pending.

Have you formally applied for TDIU?

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