Lonniebrinson

@broncovet I agree this should be looked at because it raises so many questions. There is an attorney that uses this board quite offten ( his name excapes me) but he also felt that because of the way it reads it should mean each 50% or each 100% entitled the veteran to an additional step. But as I said before, it does not. You get one step increase period. I wish it wasn't so. 

I agree with Richard.  While I can appreciate LonnieBrinson's interpretation, unfortunately, because of Chevron Deference, VA gets to interpret its own regulations as they see fit.  
I have seen this on other issues plenty.  
The old way of (VA interpretation) of this, explained by Richard, may be ripe for a change, however.  
To accomplish that (needed change) in interpretation, it would most likely involve a great law firm taking this issue, such as CCK law, or Carpenter Chartered.  
I would encourage LonnieBrinson to follow that needed change path, through a law firm.
Thats how Veterans get "favorable regulation overhauls"...

If you have not done so already I would find a very experienced and motivated paid VSO at a VA Regional Office or VA hospital to assist you with this involved situation and medical - rating issue.  Maybe another vet with identical ratings can answer your question on the Hadit forum. Good luck.

A decision has many parts. Try reading the whole thing. If that fails, focus on the findings of fact (#1) and the Conclusions of law (#1). Nowhere does  it declare the Veteran had loss of use.  Page six unequivocally denied my client's entitlement to LOU of the BLEs- e.g., "the medical evidence does not show the latter resulted in loss of use of both feet".  or "Therein, the VA examiner specifically found there  was not functional impairment of an extremity such that no effective function remained other than that which would be equally served by an amputation with prosthesis. That's VA shorthand for you do not have loss of use of your lower extremities.
I'm not sure what you mean. I think it would be very unusual if a BVA decision conflicted with itself. Of course I argued my case. That's my job. I argued two different theories- §3.350(b)(1) and §3.350(b)(3). the Judge denied (b)(1) and granted (b)(3) which is aid and attendance of another for leukemia. I'd already won A&A (§3,350(b)(3)) for the Parkinson's back in September 2019. To get to (r)(1), all you need is two SMC Ls but one has to be for A&A. Judge Martin awarded me a second one. Game. Set. Match. No LOU of extremities. No blindness. No permanently bedridden. Just two A&As. I'll put up a redacted code sheet when the OAR issues it next  week to illustrate it on paper for you.

<<<I recently file for basic regular aid and attendance 3.352(a) but was denied for a higher level of aid and attendance under 3.352(b). >>>
Let's analyze this, Mr. Brinson. There are two different levels of Aid and Attendance as you note. Regular A&A is awarded under the aegis of §3.350(b)(3) and the criteria for qualifying is described in §3.352(a). Actually there are three "types" of A&A. VA considers SMC S to be an inferior version of A&A which it is not. It's Housebound. 
From the above and the prior thread, it sounds like you feel you should be awarded R 2 automatically without climbing the SMC ladder to get there. §3.352(b) describes the criteria for entitlement to the higher level of A&A known as SMC R 2 which is described in §3.350(h).
First, let's clear the air on A&A at any level as it applies to your case. You have a rating for LOU (loss of use) of your lower extremities which entitles you to one SMC L under §3.350(b)(1). A careful reading of §3.350(e)(1)(ii) describes the requirements to first attain SMC at the O rate. It informs us that we need two (2) awards of SMC at the rates between L and N or a single rating of SMC N 1/2 plus a K rating to reach SMC O. You have one rating of SMC L and seek a second SMC rating of L for A&A. As §3.350(e)(1)(ii) states in no uncertain terms,  a second award of a rating between L and N must be independently ratable apart from your current award of LOU of your lower extremities. In simple terms, it means you are forbidden from claiming a need for A&A due to your loss of use of your legs. That would be pyramiding.
You can claim, and I would, that your 100% rating for incontinence is separate and distinguishable from your loss of use of your lower extremities. By operation of law, VA cannot combine your incontinence with a LOU of anything unless it involves paraplegia under §3.350(e)(2). We discussed this in a prior thread on this subject several weeks ago. You indicated then that your incontinence was not a result of the LOU of your extremities.
The catch on obtaining entitlement to the "higher level of A&A" (R 2) as described in §3.352(b) is simple. As I described in §3.350(h) above, you need to have two ratings between SMCs L and N to get to SMC O. Having a rating of SMC N 1/2 plus K will not get you to R 1-just to SMC O.  Once you obtain what VA refers to as the "maximum rate" of SMC O, if one of your two SMCs between L and N includes A&A at the regular A&A rate (§3.350(b)3)), then and only then are you "promoted" to R 1. You cannot get there any other way. You cannot simply say you need the higher level of A&A under R 2 or that the sum of your disabilities argues in your favor. Once you reach SMC O, entitlement to the higher rates begins. There is no way to "jump" from SMC L to R 1 or R 2.
To attain R 1, you will need two things essentially. The first is that you have been awarded the SMC O rate. You have not been awarded SMC O yet.  Test #2 is that you need one of your two SMC rates that get you to SMC O between L and N to be the regular A&A awarded under §3.350(b)3) and §3.352(a). You do not have this yet either.  If you had these two SMC rates, this would only entitle you to R 1. At that point, you would need to qualify further for R 2. 
In order to move up from R 1 to the "higher level of A&A" or R 2, you would need to fulfill all these requirements in §3.352(b)(3):
(3) 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.
(4) The term “under the regular supervision of a licensed health-care professional”, as used in paragraph (b)(3) 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.
(5) 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.
(6) 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.
(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.
Where many Vets run afoul of R 2's provisions is overlooking §3.352(b)(1)(iii):
(iii) The veteran needs a “higher level of care” (as defined in paragraph (b)(3) 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.
I win the vast majority of my clients' R 2 claims by showing some things that most would overlook. Note the discussion in §3.352(b) about what constitutes the meaning of "personal health-care services". I frequently rely on the physical therapy codicil. If my client doesn't employ a personal health care service for the client's physical therapy, I have them hire one. As long as they are under the supervision of a doctor or the equivalent, it meets the  R 2 requirement. One spouse met this by taking her husband to the local community pool in her neighborhood several times a week and swimming with him to increase his muscle tone. Because she began doing this in 2015, The BVA Judge awarded the R 2 back to 2015. If you begin the physical therapy route tomorrow morning, that will be the effective date of R 2 absent any other considerations.
So, in summary, Mr. Brinson, you could prove A&A is in order due to your inability to attend to the wants of nature to qualify. Just being able to to get to the water closet doesn't mean you can transfer without the A&A of another. Remember  always, you do not need to meet each and every requirement listed in §3.352(a). One deficiency in the activities of everyday living will do. If you have a nasty case of PTSD or TBI, you can also cite to that saying you need to be protected from hazards or dangers incident to your daily environment. What if there was a fire? Would you be able to escape without the help of another? You cannot use the argument that if you fall out of a wheelchair that you would not be able to regain your seat without the help of another. That is considered part of the loss of use and would be pyramiding.
To most easily grasp the idea of what I'm attempting to impart, try reading Breniser v. Shinseki.  Breniser explains "condition" as used in §3.350(b). There are essentially 4 conditions which will get you to R 1 or R 2. I also use the two A&As technique wherever applicable. It will require the baseline requirement of the disability in question (incontinence) being rated at the full schedular rate of 100%. You meet that requirement so the next question is probably "Why did they deny my SMC L for A&A"? Simple. It would lead to O and R 1 and they are not inclined to grant that without a pitched battle. You can win this yourself but it will require going to the BVA on appeal because no one at your Local Fort Fumble wants that on their resume. And secondly, no one at the local level probably even has the intelligence to even know  you can do it legally.
Best of luck.
 

Do not appeal yet. Get any document you can find on the internet that can be considered new evidence and submit a supplemental claim. Medical studies on the internet that show the severity of the condition, a statement from a care taker, and copies of VA M21r/USC/CFR are all things that may be considered new evidence. Get one of each supporting your claim and that documents the errors in the original decision, and then write a lay statement describing in detail what you consider to be errors in the denial. Include that with a supplemental claim and let them take the 90-120 days to process it. Just say the failed to comply with the M21/CFR/USC.
If there is a clear and unmistakable error (CUE), do not state so in this round, but instead detail the error step by step referencing M21/CFR/USC so that there is no question about what you state is true. CUE can only be claimed once, so instead of doing it up front, leave it for appeals.
If they deny it after that, think about a VSO that can communicate w/the RO directly. If that does not get it done, then appeal. Appeals are a lot longer than new evidence submissions and with the new appeals set up, you have up to a year to file supplemental and HR claims without losing your original claim award date. You can literally string out a claim for 5 years and get the back pay as long as you meet the new evidence requirement.
 
This is the guidebook that the VA MUST follow when they process claims.

Lol you're right again... Your opinion how should I appeal this matter supplemental explaining it on a 4138, HLR with a phone call or take it to BVA

I bet there is nothing about the license personal or the catheter. In the decision
They are to address all evidence favorable and unfavorable.
This how benefit of doubt works.
 
 
 

I would make sure I appeal it.
I look at it like this they are not try to grant the smc l for aid attendance.
Because this would give u two smc l and would trigger the smc o.
Which I believe if you receive in home care by a company. Would granted the smc r.
On appeal I would state I am not look for smc r.
I am looking for smc l for the need of help of others.
Not sure if you had the aid and attendance comp exam. If you did I would include it.
A statement from wife kids about how they help u.
And explain that in the appeal.
 
The board and va seem like they don't like address smc claims once they get in the smc o r area.
I am fighting the same thing almost I was granted smc l for help of other.
The board state this is for all my condition.
This is done so I can't claim need of help for different condition that are different body parts.
In my case they will not even address the smc o or r after the us court of veterans appeal remand it to be address.
I receive in home care provide by a company.
 
Good luck and don't give up.

Its all about context. Once a claim is closed any time you find an error you can file CUE on appeal. 10 years, 20 years later. Its not complex. You can claim CUE on appeal any time. This includes for SMC, TBI, PTSD, or any other claim. You do not need word salad to get the point across. Without new evidence, you may be out of luck otherwise. CUE, on its own, should be sufficient to prove its own self.  Typically, any time a VA RO responds to a veterans disability claim, the decision can be subject to CUE.  "Any Time"
One claim that settled in 2021 stated "...theories of entitlement for the awards sought included (1) that the September 1959 rating decision included Clear and Unmistakable Error (CUE), (2) that his August 1977 claim for an increased evaluation for this disability remained pending until the October 2017 rating decision, and (3) nonapplication of liberalizing laws... " (Citation Nr: 21004423 Decision Date: 01/27/21 Archive Date: 01/27/21)
You can literally appeal CUE any time, as shown by the above 62 years after the error.

<<<I believe a CUE can be claimed any time on appeal. SMC is just like any other claim. Once it is denied, and the claim is closed, if an error is discovered then it can be reopened any time and corrected.>>>
Well, now. Here we have a possible problem in wordsmithing. Believing a CUE can be claimed "any time on appeal" is a wide open statement. Yes and no.  Remember, we live in the AMA world now. Each contention (read claim) is a stand alone item. If you list on your VA form 10182 that you should be awarded a higher SMC rate than the one they gave you, that is an appeal based on case or controversy. The 'case' is case law-i.e., what does  the regulation (§3.350) and statute (§1114) say? Does either support your contention? The 'controversy' is over what you are rated at now and your contention as to what higher SMC rate you feel you deserve based on your subset of disabilities.
Let's say they give you SMC L A&A and you have an independently ratable 100% condition as well. They automatically will go to §3.350(f)(4) in most cases if they even catch it at all. So, you end up with an M (SMC P). But under Buie precedence, they are required by law  to maximize it under §3.103(a) without any prodding. You feel you should get a separate aid and attendance for your other 100% rating so you file an appeal. If the VLJ agrees, you'll get SMC O and the bump up to R1 and, if you're really hamburger helper-maybe even R2. Depends on the circumstances but that (r2) isn't germane in this discussion.
If I understand this correctly, Mr. PWRSLM  suggests that if one gets a supplemental rating denial for SMC L through N, s/he can suddenly allege CUE in the 10182 raising CUE for the first time on appeal. Wrong. You cannot raise CUE above unless it's been denied  and now on appeal. Read the next paragraph as to why you cannot. But as Mr. CUE pointed out, why would anyone choose to fight VA with one hand and one leg tied behind their back? Remember what you lose- no benefit of the doubt. No introduction of new and relevant evidence. And the error has to manifestly change the outcome. It doesn't have to be that hard. SMC is a unique kind of law exempt from statutory time constraints to appeal. First, you do not need to file a claim for it- or you shouldn't have to by law. Secondly, You can claim entitlement to it back to 19__ without resorting to using CUE-again, by operation of law.
What you cannot do in AMA is allege CUE while on appeal where you are arguing case or controversy under §3.350(e) . CUE is a separate matter under §3.105 based on error. With SMC, there is no "expiration date" or suspense date. SMC is due and owing at any time the medical evidence supports it- even if it is in your record from 2002. Just because VA disremembered to give you SMC L through N or R1/2 when you were entitled to it doesn't mean you have to file CUE. You just file a 526 or a 995 and say "Looky here. You owe me." VA will, of course, say ''no we don't''. You file the appeal, sit back and watch General Hospital or whatever for a couple of years. 
If you insinuate CUE occurred in the supplemental claim on appeal or in the body of your legal brief on appeal, the VLJ will note it in the decision and inform you or your representative that s/he is remanding the CUE matter back to the AOJ (Agency of Original Jurisdiction) for proper development (and filing) in the first instance. The AMA is structured so that each adjudication is compartmentalized. If you disagree with the SMC rating, your path diverges into three choices. 1)You can refile a new 995 "clearing up" the controversy. 2)You can ask for a HLR or 3) you can file a NOD (the 10182 we now consider the appeal mode rather than a VA 9). Or, I suppose if you prefer to choose the path less-traveled and more arduous, you can claim CUE. What you cannot do is belatedly raise an allegation of CUE during the pendency of the 10182 on appeal about how you got shafted below in Omaha. For that, if you wish to, you can actually do two things. In this crazy upside down world of AMA, you can file a CUE over it at Omaha while at the same time filing the 10182 NOD to the Board based on case and controversy. Personally, I disagree with how this AMA thing works. I liked the old Legacy system far better. It's merely an assembly line denial process now and so much for the 125-day adjudications they promised us in 2015. 
For the record, I dissent as to anyone's belief that SMC is 'just like any other claim'. That's just my personal belief based on my own experiences. Best of luck to all of you fighting for the higher rates. 

I believe a CUE can be claimed any time on appeal. SMC is just like any other claim. Once it is denied, and the claim is closed, if an error is discovered then it can be reopened any time and corrected.
 
Any denied claim can be subject to CUE.

I am lost how did veteran a appealing turn in to a cue claim.
First there is no reason to do a cue for smc benfits..
It effective by your record when the evidence in your record show it.
So early effective dates are no problem. I believe.
The va are to infer it.
 
 

CUE WARNING:
A veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim and the VA finds that the claim does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from a VSO, registered agent, or experienced attorney...  Because the "Federal Circuit equates 'issue' with a 'claim' and not a theory or element of the claim," "an appellant has only one opportunity to raise any allegation of clear and unmistakable error for each claim decided in a Board decision and any subsequent attempt to raise a clear and unmistakable error challenge to the same claim contained in a Board decision will be dismissed with prejudice."  Hillyard v. Shinseki, 24 Vet. App. 343, 354 (2011); 38 C.F.R. § 20.1409(c).  A claimant, thus, has only one chance to file a CUE claim on a prior decision.  Id.

https://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1874

<<<<If there is a clear and unmistakable error (CUE), do not state so in this round, but instead detail the error step by step referencing M21/CFR/USC so that there is no question about what you state is true. CUE can only be claimed once, so instead of doing it up front, leave it for appeals. >>>>>>>
Please be careful when handing out advice. Whoever said that clear and unmistakable error can only be claimed once is incorrect. §3.105 and its corollary in §20.1400-14.03 (and the federal courts) do not explicitly forbid filing a CUE more than once-as long as it is based on a different factual basis for the allegation of the alleged error. Please remember that each of you who offers advice is a Hadit "ambassador" and your advice can either help or harm a Veteran's claim. I'm sure everyone has a "pet" theory about how they would accomplish any given denial but in 30 years, I've discovered one truth-every claim is distinguishable and has unique fact patterns unlike any other Veteran's. Based on that, each claim has to be treated as one that has never been encountered. There simply is no such thing as a template for a VA claim. Trying to do it long distance looking through a pair of binoculars without the claims file in front of you is a fool's errand.

Just my opinion but why would u have to do a  cue for smc benfits.
They are to be granted by the record effective by the record.
The only cue would be that they didn't  inferred. I guess.
 
 

Wow thanks for the ammo I will do exactly that. I can't believe the va rater overlooked my 100% Bowel incontinence. The M21-1 states a single 100% disability should be considered an Inferred claim and consider it for smc- L aid and attendance.. Thank you so much
 

A friend of mine told me, regarding the FAA,  that
"The FAA is not happy until you are not happy".  
The VA is the same way, they are not happy unless we are miserable.  Why do they deny us?  To make us miserable and to wait from 18 months to 10 plus years in appeals, hoping we die or give up before our appeals are done.  
If you fail to appeal, give up, or quit, the VA wins.  Dont let em win.  
You need to appeal if you think you meet the criteria.  File a NOD, I recommend BVA, not HLR or SCL.  

It sound like all u need is one based on need of help of other smc l.
I have seen decision.with two smc l for aid attendance. Base on to different condition. Smc r grants.
Now will the va apply it the right way?
Because I keep see all these smc l awards and they base them on all of veterans condition.
I feel the va or the bva don't like smc claims of higher than smc m.
My opinion.
But to me sound like you are there just got to spell it out to them