Loss Of Use & Aa

[Bound4heaven]

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

[windy city]

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"?

[theotherguy]

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."

[Rich T]

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 June 2, 2007 by Rich T

[Berta]

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 June 2, 2007 by Berta

[Berta]

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 June 2, 2007 by Berta

[theotherguy]

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.