Loss Of Use & Aa - VA Disability Compensation Benefits Claims Research Forum - VA Disability Claims Community Forums - Hadit.com Jump to content
VA Disability Claims Community Forums - Hadit.com
  • 0

Loss Of Use & Aa


Bound4heaven

Question

Greetings to all,

I am helping another veteran with his claim for Aid & Attendence. This veteran was told he was awarded AA when he was rated 100% loss of use of both feet. I looked at his award letter of 2 years ago. Prior to him being granted the Loss of use he was already rated at 90% IU, T&P. The SMC he was awarded was due to a prior service connected disability rated at 60%.

I encouraged the veteran to contact our RO and ask point blank am I receiving AA. Well he did that and they told him no that he wasn't receiving AA but SMC.

Please correct me if I am wrong, but isn't a veteran granted AA when he is rated with loss of use of both feet? it only makes sense, however I know we are dealing with the VA after all.

The issue is this. This veteran thought he was reveiving AA because he was told by other VARO reps he was receiving SMC, however no caught the issue that yes he was receiving SMC, but not for AA.

I hope I am making sense. Any advice or regs that could help would be appriciated. God bless you all and thank you for your help.

Bound4heaven

Link to comment
Share on other sites

  • Answers 29
  • Created
  • Last Reply

Top Posters For This Question

Recommended Posts

No that isn't the A & A award-that is the "S" award-

A & A- he has to apply for that ---I suggest you read 1114 USC carefully or access some A &A BVA decisions-to see the criteria but

Something seems wrong with his award to me-

He should be getting 100% under DC 5110. Loss of use of both feet-

BUT he should also be getting SMC (L) too-

That is about a 600 buck difference whereas the SMC S is only giving him about -I forget- 250 more?

Now I am wondering how the S would affect the L award- but still even if he is only eligible for one of them- L brings him more money.

When was this decision rendered? Did he appeal it?

There could be definite basis for a CUE here if it became a final decision-

based on what I see here.

What is the 60% for?

The A & A might be the same amount as the L award.

BOY- I ALWAYS check these things to see if the vet was snookered-

I think he was----

did the VA make any comment at all as to why he did not receive the SMC L award?

Link to comment
Share on other sites

  • HadIt.com Elder

Thanks for helping a Veteran. Keep digging I think that you are right.

Link to comment
Share on other sites

Dear Berta,

Thank you for your reply. This decision was rendered over 2 years ago. He has not appealed it, because in reality no one knew including his VARO what his true rating was. His award letter states he has been granted 100% due to loss of use of both feet, and SMC for a previous service connected issue prior rated at 60% (Lower back issues, DDD, spine issues).

He got yesterday a letter from his primary doctor at the VA outling that he meets all qualifications for AA. I am unsure how to proceed. I believe he should apply for AA asap. The other issues you brought up are concerning to me. His award letter states nothing about which grade of SMC he has only that he was awarded it.

He will not deal with any service officer, because of past bad expirences (Brings back my memories).

I do thank you. God bless.

Bound4Heaven

Link to comment
Share on other sites

He should send them a letter requesting A & A and any evidence that supports the A & A criteria-

This raises an interesting issue -I hope others will respond-

He gets the "S" award as far as I can determine which is also comparable to HB award-so I am assumiong the A & A will be a separate award-

but didnt get the SMC -this case shows what I mean:

http://www.va.gov/vetapp00/files3/0021166.txt

I am sure this would be basis for a CUE since he did not appeal----

I am taking time off here for next week or so-but will try to check in during the week-and I will see what else I can find and help you to prepare a CUE claim-

As I understand this-

he had final unappealed decision and never NODed it.

the manifested outcome would be retro owed him if we can prove CUE-

I think the violation is right in M21-1 one of the same regs I used on my SMC CUE for accrued claim--

if the 60% is-as I understand it- independent award at about 250 a month? forget the S amount-

I surely believe at this point -they buggered this and we can fix it with the CUE claim.

Edited by Berta (see edit history)
Link to comment
Share on other sites

PS Bound- Rich and Dorothy Kansas here are our SMC experts-

they might have some good inpout here too---

but as I see this-so far----- it is a bonafide and certified CUE.

For lack of SMC "L" when the med evidence -loss of use of both feet would warrant it- as within that case above and how I understand the "L" award.

Link to comment
Share on other sites

Dear Berta,

Thank you and I will look deeper into the info you gave me. I do hope your time away is not due to health! Thank you for your continuing help on this matter. God bless.

Bound4Heaven

Link to comment
Share on other sites

Bound4Heaven,

We can tell you exactly what level of SMC the veteran is receiving if you can tell us what monthly amount he is receiving and how many dependents he currently has.

Truth in point is that he should be rated at "L and 1/2" based on the information you have provided. The statutory award of housebound status "S" should have been stopped in favor of "L and 1/2" when they granted s/c for loss of use of both feet. The "L" for loss of use of both feet may be bumped up half a step due to his back disability which is rated at 60 percent.

In order to receive entitlement to A&A, he will have to prove that he requires A&A due to service-connected disabilities other than the loss of use of his feet unless he has loss of anal and bladder sphincter control. If he has loss of anal and bladder sphincter control, he should pursue a higher level of SMC to be rated at "O" at which point if he needs A&A (even for the same disabilities) he would be rated at "R-1" or "R-2" depending on the degree of aid and attendance required.

In almost all cases SMC will not be duplicated which is why they probably told you he is receiving A&A already. While he is not rated at the A&A rate, he should be receiving the same level of SMC based on his s/c disabilities with the additional bump due to the evaluation for his back. Meaning that they would not pay him for two "L's" based on the same service-connected disability. So filing for A&A at this point would not help unless you are able to prove the above criteria.

Link to comment
Share on other sites

Bound4Heaven,

We can tell you exactly what level of SMC the veteran is receiving if you can tell us what monthly amount he is receiving and how many dependents he currently has.

Truth in point is that he should be rated at "L and 1/2" based on the information you have provided. The statutory award of housebound status "S" should have been stopped in favor of "L and 1/2" when they granted s/c for loss of use of both feet. The "L" for loss of use of both feet may be bumped up half a step due to his back disability which is rated at 60 percent.

In order to receive entitlement to A&A, he will have to prove that he requires A&A due to service-connected disabilities other than the loss of use of his feet unless he has loss of anal and bladder sphincter control. If he has loss of anal and bladder sphincter control, he should pursue a higher level of SMC to be rated at "O" at which point if he needs A&A (even for the same disabilities) he would be rated at "R-1" or "R-2" depending on the degree of aid and attendance required.

In almost all cases SMC will not be duplicated which is why they probably told you he is receiving A&A already. While he is not rated at the A&A rate, he should be receiving the same level of SMC based on his s/c disabilities with the additional bump due to the evaluation for his back. Meaning that they would not pay him for two "L's" based on the same service-connected disability. So filing for A&A at this point would not help unless you are able to prove the above criteria.

Interesting information.Will the VA pay you for 2 L's for different s/c. And if it does where will it place you in the pay chart.

Link to comment
Share on other sites

Interesting information.Will the VA pay you for 2 L's for different s/c. And if it does where will it place you in the pay chart.

It would place a veteran at "O."

(e) Ratings under 38 U.S.C. 1114 (o). (1) The special monthly compensation provided by 38 U.S.C. 1114(o) is payable for any of the following conditions:

(i) Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance;

(ii) Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. 1114(l) through (n);

(iii) Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 5/200 or less.

(iv) Service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less.

(2) Paraplegia. Paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle to the maximum rate under 38 U.S.C. 1114(o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures.

(3) Combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of “being permanently bedridden” and “being so helpless as to require regular aid and attendance” without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement.

(4) Helplessness. The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness.

Link to comment
Share on other sites

It would place a veteran at "O."

(e) Ratings under 38 U.S.C. 1114 (o). (1) The special monthly compensation provided by 38 U.S.C. 1114(o) is payable for any of the following conditions:

(i) Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance;

(ii) Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. 1114(l) through (n);

(iii) Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 5/200 or less.

(iv) Service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less.

(2) Paraplegia. Paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle to the maximum rate under 38 U.S.C. 1114(o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures.

(3) Combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of “being permanently bedridden” and “being so helpless as to require regular aid and attendance” without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement.

(4) Helplessness. The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness.

Question. A vet recieaving A&A for a s/c that is 100% and haves LOU of any extremity, is that considered another L? That means you will get "O"?

Link to comment
Share on other sites

Question. A vet recieaving A&A for a s/c that is 100% and haves LOU of any extremity, is that considered another L? That means you will get "O"?

One extremity alone would not be enough. It would take a foot and a hand to get an "L." And if one of the "L" is for A&A due to a separate disability, the veteran should be at "R."

Link to comment
Share on other sites

One extremity alone would not be enough. It would take a foot and a hand to get an "L." And if one of the "L" is for A&A due to a separate disability, the veteran should be at "R."

What if is LOU of both lower extremities, would that get you an "L"?

Link to comment
Share on other sites

What if is LOU of both lower extremities, would that get you an "L"?

The level of SMC assigned for loss of use of the lower extremities would be "L" at minimum. The level raises based on where the loss is at in each leg. See 38 CFR 3.350 for the different criteria for each level. Bear in mind that A&A must be due to another s/c disability in these circumstances unless rated at "O" or the max rate under "P."

Link to comment
Share on other sites

Thank you Berta, Theotherguy covered everything quite well. The only item not really addressed (and not a factor here), is that the lol of bowel & bladder can be corrected in any way and still apply as criteria for R1 (Special A&A). The N 1/2 + K law was PL 96-128.

Edited by Rich T (see edit history)
Link to comment
Share on other sites

Lots of SMC experts here!

great points they made-

I suggest filing a CUE like this-

I respectfully make claim of clear of CUE (Clear and unmistakable error) under auspices of 38 USC 5109A in the final unappealled decision rendered by VA on (date).

The evidence showed I was eligible for at least SMC "L" yet was not properly considered for this level or any other higher level of SMC regarding the loss of use of both of my feet.

I cite 38 USC 1114 et all, M21-1 PArt IV ,March 19,2004 (Change 113)under 3.09 "Issue",

M21-1 Part IV, as within Subchapter II SMC, and most specifically page 4 of 8 under Change 108-not affected by Change 113.

I also enclose page 349 of the Veterans Benefits Manual, 2006 edition, from National Veterans Legal Service Program to clearly show that a CUE was committed in the above final VA decision and that the manifested outcome will be altered with a proper SMC award and appropriate retroactive payment.

Enclosure: VBM Page 349 Respectfully,

(I attached the NVLSP print out)

VBVM_page_349.doc

Edited by Berta (see edit history)
Link to comment
Share on other sites

Bound for Heaven- under M21-1 Part 6 Change 108- page 4 of the M21-1 they say that A & A in a vet with loss of use of both feet- the vet should be considered for the "O" level if they are entitled to A & A ---only if they have independent 100% additional SC disability not having to do with the loss of use of feet-

unless this has changed in last 3 years -this vet you are helping might not be eligible for A & A but that sure is a CUE on the "L" award and they owe him and that could provide more comp than A & A anyhow.

I think I got that right- but please others chime in if I am wrong-

Vet with SMC at L can get O level if they have additional 100% SC independent of the loss of the feet.

("O" includes A & A criteria I think ???)

Edited by Berta (see edit history)
Link to comment
Share on other sites

Berta,

I wouldn't say they can get "O" based solely on having a separate 100 percent disability unless that 100% disability is somehow entitled to SMC between "L" and "N" on it's own merit. If a veteran for instance had 100 for loss of use of both feet and a separate 100 percent evaluation for PTSD, that was not causing them to require A&A, they would be rated a full step higher at "M" under "P."

Just my opinion, but we should probably make sure the veteran is actually still receiving "S" before tossing CUE out there. This very well may have changed with the new decision and gone over the head of the explanation to Bound4heaven. If we find out the monthly benefit amount we could figure out if the decision is wrong pretty easily though.

Link to comment
Share on other sites

Thank you all for your responses (Berta for all the regs and how to send the letter to the VA)

I ask the veteranhow much he was recieving from the VA and he responded, "$3,820.00. NOw please bear in mind that he has 7 dependents counting his wife. I hope this will help to figure where he is in the process.

Also please keep in mind prior to him being awarded 100% for Loss of use. He was rated at 90% IU P&T.

He had one 1 issue rated at 60% and several rated at 40%(If that matters which in regards to SMC I believe it doesn't)

I saw his award letter in which he was awarded the 100% loss of use, The gave him addtional comp (A higher level of SMC) because of his one rating at 60%.

No where in this award does it even hint at Aid & Attendence or homebound. Thank you all for your advice so we can help this Veteran. God bless.

Bound4Heaven

Link to comment
Share on other sites

Gee- if I take the 100% rate for 1V and 1 S and 1 child plus SMC "S" and then add the 6 other kids I get

3426 per month- difference of 394---

are all children under 18? some over eighteen would give him higher comp and also does he have some K awards?

it is hard to figure this out-

I read the 100% plus SMC S award and then added the additional 70 for the children if all are under eighteen---

does he have any breakdown at all from the VA?

The 60% I am sure is independent SMC under "S" but then again- not 100% sure------

we need all our SMC experts here again---

Edited by Berta (see edit history)
Link to comment
Share on other sites

Guest
This topic is now closed to further replies.


  • veterans-crisis-line.jpg
    The Veterans Crisis Line can help even if you’re not enrolled in VA benefits or health care.

    CHAT NOW

  • have-question-title-2.jpg

    • Read without registering.
    • Register to Post A Question.
    • Find Answers Fast - Search

    Knowledgeable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on. Use paragraphs instead of one massive, rambling introduction or story.

    Again – Make it easy for others to help. If your question is buried in a monster paragraph, there are fewer who will investigate to dig it out.

    exclamation-mark-orange-gold.jpg How To Post

    Post a clear title like

    Need help preparing PTSD claim or “VA med center won’t schedule my surgery” instead of  ‘I have a question."

    This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial of your claim?

    Note:

    Your first posts on the board may be delayed before they appear as they are reviewed. The review requirement will usually be removed by the 6th post. However, we reserve the right to keep anyone on moderator preview.

    This process allows us to remove spam and other junk posts before hitting the board. We want to keep the focus on VA Claims, and this helps us do that.

     

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

×
×
  • Create New...

Important Information

Guidelines and Terms of Use