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]

otherguy- I saw this as:

"NOw please bear in mind that he has 7 dependents counting his wife" and came up with 1 V-W -1C rate and then added 5 more kids-but math is not my strong point-

but I agree with you- if he gets "L" there is no CUE-

I wonder if the Iris people could break down his award.

This confuses me too:

Bound for Heaven said:

"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)"

[Bound4heaven]

Greetings to all,

Thank you. It appears this veteran is getting what he should, and that is a blessing.

In regards to "Aid & Attendence" this veteran has 2 letters dated may of 2007 both are from his primary VA doctor.

1) Out lines the qualifacations for AA and that the veteran meets the guidlines and his opinion he needs regular AA.

2) The second letter deals with the need for a powered lift chair and the Dr continues to say that he cannot get out of a regular chair with the aid of another person. The DR. also gives his opinion that this veteran also needs a powered adjustable bed to help him with sleep and his cares.

I believe we should apply for AA. The question I have is this. Can we use the second letter as addtional edivence because the doctor discusses the need of a lift chair, becasue he vcannot get out of a normal chair with the AA of others? God bless you all.

[theotherguy]

Bound4Heaven,

Does the veteran have loss of bladder and bowel control? This is not necessarily limited to incontinence, since I have seen fecal impaction also considered to be loss of bowel control when there is use of sepositories with diapers/pads or requirement of digital stimulation is necessary. These disabilities, while embarrassing, are the veteran's best bet for receiving a higher level of special monthly compensation and are also very consistent with significant neurological symptoms associated with significant spinal trauma which is causing loss of use of the lower extremities.

Just a reminder to you that the veteran's need for aid and attendance MUST be based on a disability other than the loss of use of his lower extremities in order to be granted. He effectively has already been determined to require the basic level of A&A due to his loss of use of the feet, which is why special monthly compensation is granted at "L" for this disability. Their regulations clearly state that the A&A must be due to a separate disability and if eligibility is present the veteran is to be rated at "O." However, it should be noted that veteran's requiring A&A at "O" will be raised to "R" even if it is one of the "L" awards used in combination to increase entitlement to "O." One other thing to note is that the VA may not reduce the veteran's compensation while he/she is hospitalized at government expense if benefits are awarded under the paraplegia provision.

Here are the two pertinent portions of their regulation (38 CFR 3.350) you will need to know to pursue increased special monthly compensation for this veteran based on the facts you have provided:

(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.

Edited June 4, 2007 by theotherguy

[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.

I finally placed a claim for loss of use of lower extremities since my s/c disability is making me have LOU. I also went to see my civilan doctor and informed her of what was going on so she decided to place me on a daily home exercise for my lower back, hips and legs and for to be supervised by my wife since tha VA clinic in my home town refused to do one because of liability and they also cannot provide me physical therapy on a daily basis.

[windy city]

Bound4Heaven,

Does the veteran have loss of bladder and bowel control? This is not necessarily limited to incontinence, since I have seen fecal impaction also considered to be loss of bowel control when there is use of sepositories with diapers/pads or requirement of digital stimulation is necessary. These disabilities, while embarrassing, are the veteran's best bet for receiving a higher level of special monthly compensation and are also very consistent with significant neurological symptoms associated with significant spinal trauma which is causing loss of use of the lower extremities.

Just a reminder to you that the veteran's need for aid and attendance MUST be based on a disability other than the loss of use of his lower extremities in order to be granted. He effectively has already been determined to require the basic level of A&A due to his loss of use of the feet, which is why special monthly compensation is granted at "L" for this disability. Their regulations clearly state that the A&A must be due to a separate disability and if eligibility is present the veteran is to be rated at "O." However, it should be noted that veteran's requiring A&A at "O" will be raised to "R" even if it is one of the "L" awards used in combination to increase entitlement to "O." One other thing to note is that the VA may not reduce the veteran's compensation while he/she is hospitalized at government expense if benefits are awarded under the paraplegia provision.

Here are the two pertinent portions of their regulation (38 CFR 3.350) you will need to know to pursue increased special monthly compensation for this veteran based on the facts you have provided:

(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.

Filed a claim for LOU of lower extremities because my s/c disability is causing for me to have LOU. My civilian doctor placed me on a daily home exercise program as part of physical therapy ( my wife is going to supervise it and the clinic is going to do follow ups twice a month) since I cannot afford to pay for physical therapy on a daily basis and the va clinic in my city is cannot provide it to me. Should I file for a fee basis card and what are the requierments to get one. Need advice