8th&IMarine

I think they possibly ordered all those extra C&P's to see if one could possibly be rated at 100% because the language for A&A approval is somewhat ambiguous and thus the reason for the denial. Hopefully this will help others realize you do not have to have a singular 100% rating to receive A&A. I was truly shocked at the speed of the process. HLR, interview, approval decision, and retro pay received all in the month of April, Had I not withdrawn the claims for increase they added and gone to all the exams, I'd probably be waiting many more months for the initial denial letter. It should be noted that my VA PCP spelled out specifically the ADL's I am unable to perform, the assistance I require, and tied them neatly to my s/c disabilities. I can only assume that the A&A exam she performed was paramount to the decision on Review but I'll know more when I get my letter from the HLR. Thanks again Mr. Cue for your sound advice.

It's been a battle. Starting here with no idea on how to file for SMC-L. Reading advice, studying ALOT, reading the USC, reading the M-21, and looking up BVA appeals cases. Some of you remember that I filed for A&A and the VA added a "request for increase" on all of my existing disabilities asking me to attend C&P's for all my disabilities. I, at the advice of Mr.Cue and after doing some research, filed a withdrawal request for the additional claims, and asked for a decision solely on my request for A&A. When I received my denial letter, it was based on the VA supposedly requiring a singular 100% disability for A&A. After more research, I filed for a HLR and received a phone interview very rapidly. During the interview I argued two things. 1. That nowhere in the 38USC does it state a 100% singular rating nor any requirement for even a schedular 100% rating for A&A. 2. That if they still feel a 100% singular is a requisite, that ALL of my disabilities were secondary to one primary and were all intertwined and caused by my left hip (50%) and all contribute to my need for A&A therefore they meet the qualification based on their M-21 guidelines. My argument was much more detailed than mentioned here but it apparently worked and my denial was overturned at the HLR level. 3 lessons - NEVER GIVE UP STUDY AND PREPARE KEEP UP WITH THE EXPERIENCES OF OTHERS ON HADIT (they all have something to add and knowledge is power). I don't even have a letter yet. I just logged into e-benefits and checked my benefits, letters and pay history. The effective date is from the date I filed so they chose not to go back to when I first received 100% P&T, but I think I'll set aside the fight for EED and just relax now. Thank you, HADIT and all who gave input here! SMC (L-1)Effective Date : 08/04/2021 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (l) and 38 CFR 3.350(b) on account of being so helpless as to be in need of regular aid and attendance from 08/04/2021. Rating Date : 04/14/2022

Link to the audio oral arguments: https://www.supremecourt.gov/oral_arguments/audio/2021/21-234

Interesting case with arguments heard this morning: George v. McDonough is a case involving when a veteran has the legal right to appeal after the U.S. Department of Veterans Affairs (VA) denies a disability benefits claim. Veterans have the right to challenge final VA decisions if the agency makes a "clear and unmistakable error" (CUE). This case is about whether CUE occurred when the VA relied on later-overturned regulations to deny a disability claim.[1] The case is scheduled for argument before the Supreme Court of the United States on April 19, 2022, during the court's October 2021-2022 term.

Update: All the claims for "increase" that the VA added were rightfully withdrawn. I since got a denial on the claim for SMC-L aid/attendance based on not having a "singular 100% disability" though they admitted that I require aid/attendance due to my S/C disabilities. My argument was like the Skeleton Dance song -The knee bone connected to the thigh bone, The thigh bone connected to the back bone. In other words all my disabilities are secondary to one primary claim- my hip. I requested a DRO review and received a phone call interview within a few days!!! Now I wait for the DRO decision. Fingers crossed again.

Seems a remand should be just that...remanded. No reason you should have to file a new Form 9 or NOD and be put at the back of the line. If the remanded decision is unfavorable and you file a NOD, you should be moved to the front of the line and not have to start over with the lengthy process.

Me when I saw that my claim has moved to "Preparation for Decision ".

Update: I informed VES that I would not be attending the exams due to inconvenience and lack of necessity. I also attached to my VA file a withdrawal request for all of the additional increase claims that I did not file for in the first place. The withdrawals showed up on my VA.gov today so now I'm hoping for a quick decision on the SMC-L claim as a stand alone request based on the 21-2680 and the other evidence I originally submitted. Fingers crossed! SMC - L Aid and Attendance (New) degenerative arthritis left hip-withdrawn 12/10/2021 (Increase) lumbar spine degenerative disease-withdrawn 12/10/2021 (Increase) plantar fasciitis right foot-withdrawn 12/10/2021 (Increase) right lower extremity radiculopathy (claimed as neuritis or radiculopathy bilateral legs/toes)-withdrawn 12/10/2021 (Increase) Left lower extremity radiculopathy (also claimed as neuritis bilateral leg/toes) (previously rated as DC 8526 left lower extremity radiculopathy)-withdrawn 12/10/2021 (Increase) degenerative joint disease right hip-withdrawn 12/10/2021 (Increase) left lower radiculopathy (femoral)-withdrawn 12/10/2021 (Increase)

This is why folks get turned down. I have had at least 5 ROM C&P's from the VA and not a single examiner used the goniometer. So if they're guessing whether it's 20 degrees or 30 or whatever, they are directly affecting your eventual rating. Always wait for the exam report though - if it's in your favor, great; and if not, grounds for a defective or inadequate exam appeal.

Could it be the date of the last change in benefits, i.e. we got a COL raise effective Dec 1. 2021.?

So I have withdrawn all the increase claims they added to my SMC-L claim. I simply cannot go through all this crap again after a decade of getting to where I'm at. Just got this message back from AskVa.gov: When you submitted VA Form 21-2680 on 11/3/2021, you also submitted VA Form 21-526EZ listing "SMC - L Aid and Attendance Secondary to Lumbar Spine Degenerative Disease (Claimed As Low Back Condition)"; therefore, medical opinion requests were sent to VES. The exam requests sent state : "The Veteran does not need to report for all examinations" indicating you may not have to attend an exam in person; however, it is the contractors discretion as to whether or not you must attend an exam for full review. So the VA feels I don't even need to report for the exams, but they'll leave it to VES discretion? VES has the option of whether I need to or not? This is the problem with contracting services!! Of course they want me to show up, they get PAID for it!

With due respect, sir, I'm not asking anyone to go "analog" nor to treat my claim "speshull". As stated, I asked them to withdraw the claims they added for increases in virtually all of my rated claims. Those claims are rated permanent and static so there is no reason to believe that my condition has changed. Furthermore, an increase in any of my ratings would not affect my 100% current rating and there are no other SMC levels that I would even remotely qualify for. I am asking for simple aid and attendance based on my conditions as they exist and have a positive A&A exam backing up my contentions as well as a 14 year history of the ratings that I base my reasoning for A&A on. It took over a decade of NOD's, appeals, and remands to get my rating. Why would I want to start the process completely over and risk running into an examiner that is having a bad day; or worse, is just not fully competent to do a thorough exam. Been there and done that. Side note: The VA requires an A&A exam be completed by a physician, yet they are scheduling all these added exams with a Nurse Practitioner with 0-1 year of C&P experience. "You come to them hat in hand and ask for whatever it is that floats your boat." Not anything that floats my boat, just the last and final form of compensation available to me. I also wasn't trying to tell VES what they could and couldn't examine me for. I just posed the question as to what the exam was for and they don't seem to want to answer. Trainwreck? Maybe, maybe not. If they actually are adding all these increase claims as part of their duty to assist and see if I possibly qualify for anything else, then I will be approved for aid/attendance even though I withdrew their added claims. This would be based on the existing evidence. If they are doing it because they believe all of my rated claims need to be revisited to determine eligibility for A&A, then I will be turned down because I withdrew them. Tossing the dice, I guess.

Appreciate all the responses so far. pwrslm suggested to "scream and holler" and mentioned the wasted tax dollars, which is so true, and that's what I have done. It seems to me while going through this, that the VA shields the VAROs from any contact by the claimant, and the only method of communication available is through the AskVA.com website or uploading to your claim on VA.gov. I have done both and, whether right or wrong, notified them to withdraw the claims for increase that they added to my SMC-L claim for A&A. I also advised them that I would attend another A&A exam, even though the one I submitted by my VA PCP was fresh in November. I mentioned that there should be no need to schedule C&P's for all of my existing ratings as any increase would not change my 100% compensation. They do not respond, even though the AskVA.gov website specifically states to expect a response within 5 working days. The only other avenue of communication appears to be the toll-free phone, but I am preferring my answers in writing and have had zero luck any time I call that line of getting any more info than what is already available on VA.gov or E-benefits. So my next question is - Does VES send an actual appointment LETTER to you? I have had a few e-mails requesting me to contact them about my availability for appointments and I have replied with a simple question of "what is this exam specifically for?". I don't receive reponses but then another request that I call them to schedule. Will I eventually get scheduled, and will it be by mail? Seems I'm in limbo as I already asked to withdraw the increase claims and that no C&P's be scheduled for those claims. (Side note about VES-I received a couple calls where the caller ID just had somebodies name, no other identifier, but the voicemail said they were with VES. Might be good to know if you're waiting on an exam notification)

SMC-L is the only one I see that I could qualify for, and that is based solely on the need for aid/attendance. I don't have a SINGLE rating of 100%, my highest is 70%, but my combined ratings put me over the top on remand 4 years ago so I am at 100% and Permanent and Static on all ratings. A few of my many C&P examiners were just flat out wrong because they were spending all the time on the keyboard instead of doing an actual exam. I had 2 different examiners state that I had a "normal gait" when I limped into the exam with my cane. You are correct about VAMC reports: My previous PCP copied and pasted alot of her "notes" from old visits so it appeared that I walked normally as well. It took a total hip replacement and an Xray of the other hip for someone to finally wake up "on remand" to grant the claims. So, yeah, I don't want the VA to open old wounds and go through all these exams all over again just to get A&A. And, with a permanent and static rating, I don't think they can force a re-exam unless there is clear medical evidence of improvement and there is absolutely nothing in my files that would lead them to believe there is. So by simply asking for A&A I opened a can of worms.