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

[Berta]

No- my daughter is visiting me and we have a lot planned to do---

I will try to find a few more decisions as I do believe that award was wrong.

Only a CUE claim can recoup what they owe him.

[theotherguy]

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.

[windy city]

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.

[theotherguy]

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.

[windy city]

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"?

[theotherguy]

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."