Persistant

I am a surviving spouse of a VietNam veteran receiving DIC.  In the request for DIC I also requested any back payment due my late husband and because there wasn't a formal claim made by him prior to his death it was denied.  The DIC was approved.  There were additional facts about his health that we tried to add to his rated conditions, but were told by VSOs from 2 different organizations that he couldn't go above 100% and they wouldn't help us file a claim for it. We also asked the VA doctors he saw and were told they didn't know how.  He was rated for ischemic heart disease, diabetes and neuropathy....equaling 100%.  Then he went into kidney failure and was on daily dialysis at home for 5 years before passing of his heart condition. He would have at least qualified for housebound and aid and attendance in addition to loss of use of his kidneys.  I don't know what else.  After the first 2 years of treatment, VA wrote saying they would be paying for it going forward. We hadn't applied for their help.  Of course, VA had records of paying for it and it was many times referenced in his 6 month checkups with the VA doctor as well.  But as I said, no one could tell us how to add it to his rated conditions.  Several months before he passed we found out about SMC online.  We engaged a lawyer's help to determine what to claim for in the SMC tier and by the time they got the C file and reviewed it to advise us, my husband passed. They advised me to apply for additional $ owed along with my DIC form.  But beyond that they weren't involved.  After the denial, I began putting together claim information by myself.   I filed a NOD with a DAV rep, in person, at the local VA hospital to give me more time to finish.  Many months later I found out it was never filed due to a direct instruction NOT to.  The person giving that directive was in an authoritative position so it was obeyed.  No one ever told me until I called to see why VA didn't have it.  And on the phone was told what had happened.  Of course that ended my opportunity to show reason for back pay.  Also during that time there was a change in the VA procedure that they could no longer use material evidence of a condition, such as their records I referenced above, to prove they knew about the dialysis, but never put anything in the C file about it.  So then my records couldn't be honored anyway.  
 

"Can I ask for a rating sheet for the Cause of Veterans Death? When I called the 800# , I told them the original ratings and that is what they still show, nothing changed. "
I feel you are stilled entitled to a rating sheet based on the DIC award.Best to request that in writing-however

Do you have the rating sheet for any past awards-such as the accrued award?
In one sense that rating sheet might be correct.

I got rating sheet with accrued benefit award 1997 and then 6 months later I got rating sheets with the 1151 award with a full rating breakdown (which was wrong) 1998 and VA had totally eliminated any mention, diagnostic code and percentage for my husband's fatal IHD (the biggest reason I got 1151 DIC)and the reason I now fall under Nehmer.


Sorry-I have had problems today posting here -and need to try to delete my other post here-

"which would have put him in the SMC percentages prior to his death"

With TDIU for SC disability and then with 60% or more for what should now be any AO presumptive, that would warrant SMC at the "S" level.

This is due to the Bradley V Peake decisions ( discussions here on that case) as well as in your case and mine-due to Nehmer and the new presumptives.

I didnt raise Bradley in my CUE claim as I filed CUE in 2004 on the lack of SMC consideration-in my husband's lifetime as the medical evidence warranted it.This was prior to Bradley.

It could be a point for you to raise -after you read the info here on Bradley-but AO widows are eligible for ALL AO accrued benefits and if the VA should have considered and then awarded SMC and they didnt-that is a CUE.

What is the date of your accrued award decision and the date of the DIC award?



I have 2 separate DIC awards for two separate causes of death.Maybe that is why I didnt get rating sheet with my recent DIC award.
I received no info at all on additional benefits with my recent award and how this award affected them.

Good thing I knew what benefits they owed me. I did get them all but only because I knew what they owed me


"which would have put him in the SMC percentages prior to his death"

With TDIU for SC disability and then with 60% or more for what should now be any AO presumptive, that would warrant SMC at the "S" level.

Do you have a vet rep who can assess your DIC award and those past decisions to seek the SMC potential?

"which would have put him in the SMC percentages prior to his death"

With TDIU for something and then with 60% or more for what should now be any AO presumtpive, that would warrant SMC at the "S" level.

This is due to the




"Sorry one other question, Were you able to get a rating sheet from the VA after they granted you Cause of Veterans Death? "


No-nothing came with the award , not even advising me for additional benefits I was eligible for.

Good thing I knew what benefits they owed me.

Yes I did receive accrued benefits for the TDIU which they had calculated incorrectly and it was a separate check. Can I ask for a rating sheet for the Cause of Veterans Death? When I called the 800# , I told them the original ratings and that is what they still show, nothing changed. My thinking and I may be incorrect is that something had to change in the percentages when they granted Cause of Veterans Death which would have put him in the SMC percentages prior to his death and I should have been paid at the SMC rate for accrued benefits. Thanks Berta, once again you are a wealth of information. Sorry one other question, Were you able to get a rating sheet from the VA after they granted you Cause of Veterans Death?

"Wondering if I should persue this" YES!~!!!!

"and would i fall under Nehmar."""" YES!!!!!!!!!!!!!!!

"Today I called the 800# and the lady told me they had no claim pending and did not show a letter being sent to me in July."

They already lost my IHD claim but are working on my SMC AO IHD claim.Maybe IRIS wold give you a better status.

(the contact Us system at www.va.gov)

"when I received my award letter back in June it just stated that Cause of Veterans death was granted. Would the VA have to give percentages to each disablility when they grant a cause of veterans death"

YES-they did this to me too for my award a few months ago.NO rating sheet.

They are not handling widow's claim right- what else is new----

The rating sheets for past decision I got , that they always used to send me- certainly helped me support my present IHD claim.

This is my belief- that the VA failed to take into account the SMC nuances of the new regs.

Any vet with 100 or TDIU who now would be eligible for 60 % or more SMC for AO IHD would be eligible for Nehmer retro for SMC.

Any widow in similiar situation would have basis for accrued SMC under Nehmer.

But the VA does not want us to even know of or think of these things as these SMC awards will be costly.

I bet they made no statement whatsoever regarding any SMC or accrued on your DIC award.

You might need to apply formally for SMC accrued under Nehmer with a proper SC rating for your husband's IHD.BUT it sounds like they pulled your claim as they picked upon the IHD and that might regard the SMC.......

Hard to know yet.....

Do you have a vet rep?

I think the IRIS response might be helpful to you.And certainly a vet rep could check into the whereabouts of your claim.

Many claims under AO new regs are being handled by ROs that are not the AOJ (agency of original Jurisdiction).

I have a question hope I make this clear. I was awarded DIC back in June and received the back pay etc, in July I received a letter from the VA stating they were working on my claim. I assumed that it was for the IHD which I had pointed out several times while my claim was in appeals from 2002. Today I called the 800# and the lady told me they had no claim pending and did not show a letter being sent to me in July. My question, when my husband received award letters from the VA while he was living, they always stated the percentages for each disability, when I received my award letter back in June it just stated that Cause of Veterans death was granted. Would the VA have to give percentages to each disablility when they grant a cause of veterans death. Example my husband was granted 20% for DM II but when I filed for Cause of Veterans Death and had proof that he had renal failure and was in the hospital on dialysis for the renal failure due to Diabetes would that not have put him at the !00% for Diabetes and put him in the SMC catagory and given me accrued benefits at the SMC rate?. Also he had a acute myocardial infracture which would be IHD. When he was living he was rated @ 90% with one disablility rated @ 70% and the BVA granted TDIU @100% during my appeals claim. Wondering if I should persue this and would i fall under Nehmar. Thanks

Persistant:   Please Ask your question in a "new Topic".  Its confusing when you ask it in someone elses post.  THIS ONE TIME I will answer, tho you will have to start a new post in the future AND you will get more and better answers if you ask your question in a new topic.  
Based on what you posted, you should get SMC L for A and A. The reason is because you said you cant do daily activities without help.  You will need a doctors statement to the effect that you need help with daily activities, and what it is you cant do, and why.  
You can still get A and A if your caregiver is related to you.  See item C, below:
38 CFR 3.352 - Criteria for determining need for aid and attendance and “permanently bedridden.”
eCFR Authorities (U.S. Code) What Cites Me prev | next § 3.352 Criteria for determining need for aid and attendance and “permanently bedridden.” (a)Basic criteria for regular aid and attendance and permanently bedridden. The following will be accorded consideration in determining the need for regular aid and attendance ( § 3.351(c)(3): inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. “Bedridden” will be a proper basis for the determination. 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.
(b)Basic criteria for the higher level aid and attendance allowance.
(1) A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(h) in lieu of the regular aid and attendance allowance when all of the following conditions are met:
(i) The veteran is entitled to the compensation authorized under 38 U.S.C. 1114(o), or the maximum rate of compensation authorized under 38 U.S.C. 1114(p).
(ii) The veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section.
(iii) The veteran needs a “higher level of care” (as defined in paragraph (b)(2) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care.
(2) Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof.
(3) The term “under the regular supervision of a licensed health-care professional”, as used in paragraph (b)(2) of this section, means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice.
(4) A person performing personal health-care services who is a relative or other member of the veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional.
(5) The provisions of paragraph (b) of this section are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the veteran's need is clearly established and the amount of services required by the veteran on a daily basis is substantial.
(Authority: 38 U.S.C. 501, 1114(r)(2)) (c)Attendance by relative. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance.
 

The problem you experience is contained in 38 CFR 3.350(a)  Ratings under SMC K. Read this sentence and I will turn it into Vetspeak.
This special compensation [SMC K] is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability, provided that the combined rate of compensation does not exceed the monthly rate set forth in 38 U.S.C. 1114(l) when authorized in conjunction with any of the provisions of 38 U.S.C. 1114 (a) through (j) or (s).
Translated, this means you can have no disability ratings whatsoever and get as many Ks as you want as long as they do not exceed what is paid out as SMC L. Concurrently, you can be entitled to a 100% schedular rating and get as many Ks as you qualify for as long as you do not exceed the SMC L dollar amount.  SMC S (which is a compendium of your 100% rating PLUS the $346.84 bump for the SMC S) still permits you to have K ratings -but again- as long as they do not exceed the SMC L barrier. The roadblock will always be the "does not exceed the monthly rate set forth in 38 U.S.C. 1114(l) " when you are also getting SMC S ( or 100% schedular plus more than six (6) SMC K ratings) . 
For the record, a male can only qualify for seven SMC Ks. A woman can achieve eight because she can have loss of breast(s) as well as loss of creative use of her ovaries for reproduction.
For argument's sake, you could be entitled to X number of K's. The only limit is explained in the above paragraph.  When you are granted SMC S via a"substantially housebound" interpretation or via the 100% plus 60% (which you qualify for because of your ratings percentages), the SMC L  metric kicks in concerning how many SMC K ratings you can have. The VA set the limit by saying you cannot exceed the amount granted under SMC L. Note that they did not say "If your SMC S and all those Ks exceeds SMC L, then we're going to pay you at the "L" rate. They did not. They said it cannot exceed the amount paid for SMC L. 
SMC L currently pays $3,617.02 for a single Vet. I'm not going to add up your children and spouse. Those would not be included towards the ultimate $ figure limit anyway. If you are a single Vet at SMC S, you get $3,253.67 per month. SMC K is good for $103.23 per month per K rating. Thus $3,253.67 + $103.23 + $103.23 + $103.23= $3,563.36. That is three SMC Ks on top of the SMC S. Note that if you add a fourth SMC K of $103.23 to it, you will exceed the rate paid for SMC L which is forbidden. Nowhere does it say you get to jump to the SMC L pay scale or magically gain entitlement to Aid and Attendance.
VA is very stingy with their funds. Qualifying for SMC L is set in stone. BroncoVet enunciated the requirements above. Proving the need for Aid and Attendance is usually decided based on how Form 21-2680 is answered. One missed question on this test disqualifies you for it. 
If all that was not confusing enough, if you are entitled to any of the SMCs L through O including intermediate rates (1/2 steps), your added-on SMC Ks cannot exceed the rate of payment for O/P, which is $5,075.60 per month. You would have to add the $103.23 "K" multiples for each rate between L-O/P to see where you exceed the O/P rate. An example here would be if you qualified for the N 1/2 rate of $4,808.00 per month and had two SMC Ks. A third "K" would take you over the O/P rate. There are no K ratings after O/P in the R1 and R2 levels of Special Aid and Attendance.
To say Special Monthly Compensation is misunderstood is a masterpiece of understatement. It's almost a juris doctorate in its own right. It took me years to understand it and they occasionally change the rules as they did in 2011. When in doubt, Powerpoint it. Parse every "if...then". I can show you how it is technically (and legally) possible to advance to R2 from SMC L based on only two of the requirements of SMCs L-O by legally pyramiding. This (in conjunction with 3.352) is the only regulation in 38 CFR that actually permits pyramiding. SMC has more twists and turns than the Mississippi River. I've even explained it to VA lawyers who get lost in it.
I hope this helped.

<<<<<<<<<< 38 CFR 3.350(f)(3) at the rate intermediate between subsection (l) and subsection (m) on account of schizophrenia, paranoid type with depression with additional disability, tardive dyskinesia, independently ratable at 50 percent or more from 12/06/2011.>>>>>>>>>>>
 
The answer is simple. If you are rated 50% over and above a 100% schedular (but notTDIU), 38 CFR 3.350 (f) (3) kicks in.:
(3) Additional independent 50 percent disabilities. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above, additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher intermediate rate or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C. 1114, but not above the (o) rate. In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above. The graduated ratings for arrested tuberculosis will not be utilized in this connection, but the permanent residuals of tuberculosis may be utilized.
 
Your ratings indicate you are 50% or more above 100% so they automatically go up 1/2 step from L to L 1/2. If you have two dissimilar ratings for 100% they would give you the full step from L to M. I'm in the process of doing this now at the BVA on appeal. I have one 100% schedular for HCV and fought a long CUE battle to get SMC S back to 94. When VA caved in at the CAVC after I filed my Extraordinary Writ in January, they granted 60% for the Agent Orange disease ( Porphyria). This entitled me to what you are talking about (3.350(f)(3) My 2008 C&P clearly said "totally disabled" due to Porphyria alone. If I prevail on it, then I qualify for the full bump from L to M (3.350(f)(4) after I get my driver's license for a wheelchair. Build it before you get there. If you even suspect you are entitled to a full schedular rating for any one of your diseases, do it now so the wifesan won't have to fight this when you are toast. Most VSO reps would not be aware of this. Hell, my VLJ at the travel board hearing had to look it up. It's not very well known. Funny how VA forgets to mention these things, huh?